Dodd v. Home Mutual Ins. Co.
| Decision Date | 22 February 1892 |
| Citation | 22 Or. 3,29 P. 3 |
| Parties | DODD v. HOME MUT. INS. CO. |
| Court | Oregon Supreme Court |
On rehearing. See 28 P. 881.
Counsel for the respondent have presented a petition for a rehearing mainly on the ground that the court mistook the term "renewal," used so frequently in the evidence, and that we should have held that the parties meant by the use of that term the issuance of a new policy, and not the continuing of the old policy in force. It is true that in some parts of the plaintiff's evidence something was said about a new policy; but the great body of the evidence refers entirely to a renewal. In addition to this, the sending of the book-keeper to the office of the defendant company, and to the private residence of the secretary of the company with the old policy, with directions to procure the indorsements on the policy showing the renewal, we think indicate what was the plaintiff's intention and understanding too clearly and conclusively to admit of any controversy. This much may be said, conceding the plaintiff's entire sincerity in the transaction; but if we are compelled to rely upon that transaction, or any part of it, as a basis for equitable relief, the same cannot receive the approval of the court. The plaintiff, through his book-keeper, sought to secure a renewal of the old policy, or evidence on that subject, by concealing the material fact then within his knowledge, that the property at Pullman had been destroyed by fire on that day, and it was because of that knowledge that he would tolerate no delay. Arthur Wilson must be found, and the indorsement must be procured, before the company could probably learn of the fire. Was there any reason for this concealment and silence, other than an intent thereby to overreach the defendant? In such case the plaintiff may be exonerated of all fraudulent intent, and in this class of cases the result would be the same. The suppression of a material fact, or the failure to communicate a material fact, without any purpose of deceiving or misleading the other party, and even without having himself any knowledge of the fact, while not affecting the validity of the agreement at law, and not being sufficient ground for its cancellation in equity, because not fraudulent, may still render the agreement so unfair unequal, or hard that a court of equity, in accordance with its settled principles in administering the remedy of specific...
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