Folb v. Firemen's Ins. Co. Of Baltimore

• Decision Date: 20 October 1903
• Citation: 45 S.E. 547,133 N.C. 179
• Court: North Carolina Supreme Court
• Parties: FOLB. v. FIREMEN'S INS. CO. OF BALTIMORE.

45 S.E. 547

133 N.C. 179

FOLB.

v.FIREMEN'S INS. CO. OF BALTIMORE.

Supreme Court of North Carolina.

Oct. 20, 1903.

FIRE INSURANCE—POLICY—PREMIUM—PAYMENT IN GOODS—EFFECT.

1. The taking of clothing by an agent of a fire insurance company in part payment of the premium of a policy was a fraud on the company, and no valid contract, as to the company, arose from such a transaction.

v 1. See Insurance, vol. 28, Cent. Dig. § 235.

Appeal from Superior Court, Cumberland County; Cooke, Judge.

Action by Mike Folb against the Firemen's Insurance Company of Baltimore. From a judgment for defendant, plaintiff appeals. Affirmed.

H. L Cook, N. A. Sinclair, and E. G. Davis, for appellant.

S. H. MacRae and Rose & Rose, for appellee.

CONNOR, J. Plaintiff testified: That he was engaged in business as a clothing merchant in Fayetteville, N. C, in 1901 and 1902. Had one store, which he called the "Boston Clothing Store." That he was solicited by John Underwood, defendant's local agent, to give him some insurance in defendant company. That he finally told Underwood that he would take a policy of $2,000 on his stock in the Boston Clothing Store. That agent said he would place his insurance in defendant company. This was about the 6th November, 1901. Agent told him afterwards that he had written the policy in said company upon the stock of goods, and had it in his office, in the safe. The policy covered clothing, gent's furnishing goods, etc. That he had no other insurance on that stock. Early in January, 1902, said store was destroyed by fire. The value of the stock at the time of the fire was $5,500. The damage by fire and water was $1,647.90. That he notified defendant's agent. That he did not pay the $34 the very time he agreed on the contract of insurance. That a few days afterwards he paid it by letting said agent have some clothing out of the store to the amount of about $20, and the balance in money. That it was cold weather when he paid agent for the insurance, and he said he needed some clothes, and he would as leave buy them from plaintiff as any one else, and, as he had given him the insurance, he would take part payment in clothing. He took a suit of clothing for himself, and perhaps some other articles. Plaintiff paid the balance in money. Mr. MacRae, agent for the company, notified plaintiff that the company would not recognize any liability. No policy of insurance was ever produced, nor was there any evidence that any policy was ever issued, nor that the defendant had any notice of the transaction until after the fire. There was evidence in regard to the proof of loss after the fire. Upon this testimony plaintiff rested. The defendant moved for judgment of nonsuit. This motion was allowed, and plaintiff appealed.

We are of opinion that there was no error in his honor's ruling. It is clear...