Garretson v. Merchants' & Bankers' Ins. Co.

• Decision Date: 20 October 1894
• Citation: 92 Iowa 293,60 N.W. 540
• Court: Iowa Supreme Court
• Parties: GARRETSON v. MERCHANTS' & BANKERS' INS. CO.

92 Iowa 293

60 N.W. 540

GARRETSON

v.MERCHANTS' & BANKERS' INS. CO.

Supreme Court of Iowa.

Oct. 20, 1894.

Appeal from district court, Polk county; W. F. Conrad, Judge.

Action on a policy of fire insurance. Judgment for the defendant, and the plaintiff appealed. Affirmed.Merritt & Bunting, for appellant.

James A. Howe, for appellee.

GRANGER, C. J.

This cause was before in this court, and is reported in 81 Iowa, 727, 45 N. W. 1047. At the time of the loss the building insured was being used as a restaurant, and a clause of the policy provides that it was to be used for “any mercantile purpose” On the former appeal it was held, as a matter of law, that the use of the building as a restaurant was a violation of the provision that it should be used for mercantile purposes; and the cause was reversed because of an instruction not in harmony with such holding, and, further, because the verdict for plaintiff was without support in the evidence. In avoidance of the allegations of the answer that the building was used as a restaurant, in violation of the terms of the policy, the plaintiff pleaded that the policy was issued and continued with knowledge on part of the defendant that the building was to be so used.

1. In support of this plea in avoidance, W. C. Garretson, a brother of the plaintiff, was a witness, and testified that he met in Des Moines Prof. Carpenter, who was president of the defendant company, and the conversation turned upon what changes had been made in Oskaloosa, where both had been acquainted, and the witness said: “I spoke of the new buildings that were near the corner I called my corner. Then I said to him that my corner had been turned into a restaurant. He said: ‘Yes, yes; I know that, because it was insured in our company.’ After a few more remarks about changes, we separated, and that was all there was about it.” The court reserved its ruling on the question, and after the admission of considerable other evidence the motion to strike was sustained. The grounds of the motion are that the testimony was immaterial, and that it did not appear that Carpenter, at the time of the conversation, “was acting in the capacity of president of the insurance company and transacting its business.” The case is argued to us on the theory that the court sustained the motion to strike on the latter ground, by which we understand the same rule to be applied to the imparting of knowledge or to the acquisition of knowledge by a corporation that would obtain where it sought to bind a principal by the acts and declarations of his agent, which is that when the acts are done or when the declarations are made he must be engaged in the business of his agency. We are not prepared to sanction such a rule, nor do we think that the learned judge who presided at the trial took that view of the law. This seems quite apparent from his remarks and the condition of the record as to other rulings. We, however, think the testimony was immaterial. The policy issued to C. S. Garretson, and by its terms he was the sole owner of the property. The evidence refers to a corner owned by W. C. Garretson, and not to a building then insured in the defendant company, but one that was or had been so insured. If the record contains...