Brandup v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 30 December 1880
• Parties: BRANDUP v ST. PAUL FIRE & MARINE INS. CO.
• Court: Minnesota Supreme Court

27 Minn. 393

7 N.W. 735

BRANDUPvST. PAUL FIRE & MARINE INS. CO.

Supreme Court of Minnesota.

Filed December 30, 1880.

Appeal from order of district court, Wilken county.

Wilson & Lawrence, for respondent.

Harvey Officer, for appellant.

GILFILLAN, C. J.

Action on a policy of fire insurance, issued by defendant to plaintiff. The policy contained this condition: “If the assured shall have or shall hereafter make any other contract of insurance, whether valid or not, on the property hereby insured, or any part thereof, without the consent of the company written hereon,” “this policy shall be void.” One of the defences was that after the issuance of this policy the plaintiff procured the issuance by the Continental Insurance Company of a policy, insuring the same property, of which defendant had no knowledge or notice, and to which it did not consent, and did not indorse its consent on its policy, by reason whereof its policy became void prior to the loss. These facts do not seem to have been controverted in the evidence. One Charles B. Falley was what is called soliciting agent for both the companies at the place where the property insured was situated. His authority as “soliciting agent,” from defendant, was to receive and forward for its approval applications for insurance. Plaintiff applied at the same time to the agent for insurance in both companies. Written applications therefor were written by the agent and signed by plaintiff, and then forwarded by the agent to the respective companies. The application to defendant made no mention of other insurance, either perfected or applied for. The agent instructed plaintiff how the question in the application in regard to other insurance should be answered, and it was so answered, and the agent was to notify the company of the other insurance. The applications were approved, and policies made out by the respective companies and forwarded to the agent, Falley, and were by him delivered at the same time to plaintiff. The premiums were paid to the agent, either when the applications were signed or when the policies were delivered. There was no indorsement on defendant's policy in respect to the insurance in the other company.

The application to defendant's soliciting agent was made with notice to him that plaintiff desired and intended to procure other insurance on the same property. It was, in effect, an application for a policy which would permit such other insurance. Notice of that to the...