Davis v. Pioneer Furniture Co.
| Decision Date | 14 March 1899 |
| Citation | 102 Wis. 394,78 N.W. 596 |
| Parties | DAVIS v. PIONEER FURNITURE CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.
Action by C. W. Davis, as receiver of the Oshkosh Mutual Fire Insurance Company, against the Pioneer Furniture Company. From a judgment for defendant, plaintiff appeals. Reversed.
The plaintiff sued, as receiver of the Oshkosh Mutual Fire Insurance Company, to recover on a premium note given by the defendant July 1, 1889. The defendant answered, alleging, in substance, that the note was void on account of a provision in the policy that the policy should be void if the defendant was not the sole and unconditional owner of property, or if there were kept, used, or allowed on the premises certain explosives, including benzine; that both of these conditions had been broken; and that the premium note was therefore without consideration. It appeared on the trial that the insured buildings were a large furniture factory, and that the defendant's title at the time of the issuance of the policy consisted of a conditional deed, dated January 6, 1888; the conditions being that the defendant was to erect a furniture factory of a certain size, and to operate the same continuously for five years, with a certain number of workmen, or to pay the grantor $10,000, and, in case of default of both of these conditions, the property to revert to the grantor. An absolute deed was executed at the same time, and placed in escrow, under a written contract providing for its delivery at the end of five years in case all the conditions under the other deed were complied with. This absolute deed was afterwards delivered, in August, 1893. The plaintiff was appointed receiver of the insurance company in November, 1889. The defendant kept at all times, during the continuance of the policy, benzine on the premises, for use in the manufacture of furniture. At the close of the evidence the court, being of the opinion that the case only presented questions of law, directed a verdict for the plaintiff, subject to the opinion of the court, and afterwards, being of the opinion that the undisputed facts entitled the defendant to judgment, set aside the verdict, and rendered judgment for the defendant.
Barbers & Beglinger, for appellant.
Wickham & Farr, for respondent.
WINSLOW, J. (after stating the facts).
If the defendant, in case of fire, could have recovered upon the policy of insurance, notwithstanding the use of benzine upon the premises, and notwithstanding the condition of the title, then the defense to the note must fail.
As to the use of benzine upon the premises, there can be little doubt that the policy was not vitiated thereby. The property was a large furniture factory, known to be such, insured as such, and expected to be used as such. The evidence shows that there were a few barrels of benzine kept on the premises at all times; that it was used in finishing the furniture manufactured on the premises. There is nothing to show that any more was kept than was reasonably necessary to operate properly a factory of this capacity. In the case of Faust v. Insurance Co., 91 Wis. 158, 64 N. W. 883, it was held that where a contract of...
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