Farmers' & Merchants' Ins. Co. v. Wiard

• Decision Date: 19 December 1899
• Citation: 81 N.W. 312,59 Neb. 451
• Parties: FARMERS' & MERCHANTS' INS. CO. v. WIARD ET AL.
• Court: Nebraska Supreme Court

59 Neb. 451

81 N.W. 312

FARMERS' & MERCHANTS' INS. CO.

v.WIARD ET AL.

Supreme Court of Nebraska.

Dec. 19, 1899.

Syllabus by the Court.

1. A policy of fire insurance stipulated that it should be suspended and rendered inoperative and of no force during the time the premium note, or any part thereof, remained overdue and unpaid. That the note remained unpaid at the time the insured property was destroyed by fire will not defeat a recovery on the policy, in case the note had not then matured.

2. Where the insurer relies upon a stipulation in a policy to defeat a recovery, it must plead affirmatively a breach thereof as a defense.

3. A premium note executed by the insured is a sufficient consideration for the policy.

4. The evidence is sufficient to show that the application for insurance was not written by the agent of the insured, and that the company accepting the application and premium note ratified the act of the person who prepared and forwarded the same.

5. Notice to an agent is notice to his principal.

6. A party desiring the court to pass upon the constitutionality of a statute should point out in his brief the section of the constitution which he claims the law infringes.

Error to district court, Holt county; Westover, Judge.

Action by Gilbert Wiard and others against the Farmers' & Merchants' Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.Rose & England and Jos. Wurzburg, for plaintiff in error.

M. F. Harrington, for defendants in error.

NORVAL, J.

On June 2, 1892, the Farmers' & Merchants' Insurance Company, upon a written application therefor of Gilbert L. Wiard, of Holt county, issued to him a policy of insurance upon his dwelling house and household goods contained therein and other personal property. The insured, in payment of the premium on the policy, gave to the company his promissory note for $28.50, due January 1, 1893. The dwelling and some of the household goods therein were wholly destroyed by fire in July, 1892. The policy was assigned to the Exchange Bank as security for an indebtedness owing by Wiard to the bank. The company having denied a liability, the insured and the bank brought an action upon the policy in the county court, and recovered judgment. On appeal by defendant, they obtained judgment in the district court, which is before us for review.

The premium note had not been paid at the time the loss occurred, but that fact could not defeat a recovery, since the note had not matured at the time of the fire, and the policy merely provided that it should be suspended and rendered inoperative and of no force and effect during the time such premium note or any part thereof remained overdue and unpaid. Moreover, this provision of the policy was not pleaded as a defense by the company. It is true the plaintiffs set out a copy of the policy in their petition, and averred that the same was issued upon a valuable consideration. The answer expressly denies this allegation, but that did not tender an issue relative to the premium note being unpaid, or whether the policy was invalidated by reason of such nonpayment. The giving of the note was a sufficient consideration for the issuance of the policy in question.

The policy was issued upon the written application of the insured, stating that the property was incumbered to the amount of $1,800, due in 1893. The policy stipulated that it was based...