Consumers' Match Co. v. German Ins. Co. of Freeport

• Decision Date: 29 February 1904
• Citation: 70 N.J.L. 226,57 A. 440
• Parties: CONSUMERS' MATCH CO. v. GERMAN INS. CO. OF FREEPORT.
• Court: New Jersey Supreme Court

57 A. 440

70 N.J.L. 226

CONSUMERS' MATCH CO.

v. GERMAN INS. CO. OF FREEPORT.

Court of Errors and Appeals of New Jersey.

Feb. 29, 1904.

Error to Supreme Court.

Action by the Consumers' Match Company against the German Insurance Company of Freeport, Ill. From a judgment for defendant, plaintiff brings error. Affirmed.

George P. Rust, for plaintiff in error.

Cowles & Carey and W. D. Murray, for defendant in error.

GUMMERE, C. J. The writ of error in this cause was sued out by the plaintiff on a judgment of nonsuit entered against it in the Supreme Court. The case made by the declaration was that on the 4th day of June, in the year 1901, it was agreed by and between the said plaintiff and the said defendant that the latter, in consideration of the sum of $75 to it to be paid by the former, and which the former then and there agreed to pay, would insure it against loss or damage by fire, to the amount of $2,500, on the former's match factory, in Passaic, N. J., and would make good unto it all such immediate loss or damage, not exceeding in amount the sum so insured, as should happen by fires to the said property from the 4th day of June, 1901, at noon, to the 4th day of June, 1902, at noon, and would forthwith issue and deliver to it a policy of insurance setting forth said contract of insurance, and duly executed by the defendant, which said policy of insurance should contain printed terms and conditions usual and customary to be inserted in its policies by the said defendant The declaration then alleges a breach of this agreement by the defendant, and resulting damage to the plaintiff by reason thereof.

The facts proved were these: The Consumers' Match Company during the year 1901 was in the business of manufacturing matches in its factory, located near the city of Passaic. The defendant at that time was, and still is, in the business of fire insurance. Its agent in Passaic during the year 1901 was Hugh Mulholland. In the early part of May, 1901, the plaintiff, desiring to obtain $20,000 of fire insurance upon its factory, gave instructions to one Marsellus, an insurance broker, to procure this amount. Marsellus applied to Mulholland to write $2,500 of this insurance, and Mulholland, as the agent of the defendant company, agreed to write that amount. He had in his possession at that time blank policies of the defendant company, signed by the president and attested by the secretary, ready to be countersigned by him as agent, and to be delivered to...