Hamilton v. Lycoming Ins. Co.

• Citation: 5 Pa. 339
• Parties: HAMILTON <I>v.</I> LYCOMING Mutual Insurance Company.
• Decision Date: 31 May 1847
• Court: United States State Supreme Court of Pennsylvania

Page 339

5 Pa. 339

HAMILTON v. LYCOMING Mutual Insurance Company.

Supreme Court of Pennsylvania.

May 29, 1847.

May 31, 1847.

May 29.

IN error from the Common Pleas of Clinton.

COPYRIGHT MATERIAL OMITTED

Armstrong, contrà.—The reasoning of the court below is the best argument for the defendant. The company were not bound until a policy issued; 2 Watts & Serg. 545. There was ample grounds for requiring this previous assent of the trustees of the property. By the charter, the premium notes are liens on the land of the insured, and it was for that purpose the company stipulated for it. The plaintiff had made the agent of the company his own agent to deliver this, and is bound by his neglect; 7 Watts & Serg. 348. But at all events there was no authority by an owner of the land competent to attach the lien of the note; hence the contract was not binding.

May 31. GIBSON, C. J.

In commercial towns, where the members of the profession are familiar with the law of insurance, actions on mere agreements to insure, whether against fire or perils of the sea, are not uncommon. They are noticed in 1 Phillips on Insurance, § 3, p. 9; but it appears that the terms of the contract must have been settled by the concurrent assent of the parties, and that nothing must have remained to be done but to deliver the policy, else the risk will not have been begun: in other words, that the agreement must have had, at some particular instant, that aggregatio mentium which is indispensable in the constitution of every contract. But what are the tests of its presence? In McCulloch v. The Eagle Insurance Co., 1 Pick. Rep. 278, the plaintiff wrote to learn the terms on which the defendant would be willing to insure his vessel on a particular voyage, and was answered that it should be done for a particular premium. He immediately sent an order for insurance on the terms proposed; but before it was written, the defendant had despatched another letter, declining to take the risk: and it was held, that at no instant had there been a simultaneous expression of assent. On a principle somewhat analogous, stands Cooke v. Oxley, 3 Term Rep. 653, in which it appeared, by the declaration, that the defendant had offered the plaintiff a commodity at a particular price, provided the latter would give notice of his acceptance before a particular hour of the day; that the notice had been given within the time, but that the article had not been delivered: but judgment was arrested because the plaintiff had not laid a cause of action. This last case is resolvable into the principle that either party may retract his offer while the matter is pending, just as a bid at auction may be retracted before the hammer is down. Such, too, is the principle of Routledge v. Grant, 3 Car. & P. 267; and it is a very practicable one where the negotiation is not carried on through the post-office. But the last case upon the point has overruled McCulloch v. The Eagle Insurance Company. In Adams v. Lindsell, 1 Barn. & Ald. 681, the defendants had offered to sell the plaintiffs a parcel of wool on terms expressed in their letter, "receiving an answer in the course of post." The letter, being misdirected, did not go by course of post; but the plaintiffs wrote, as soon as it was received, that they would take the wool on the terms proposed. The defendants, however, not having received the answer when they expected it, sold the wool to another. The court said, that if a bargain could not be closed by letter before the answer was received, no contract could be completed through the medium of the post-office. That if the defendants were not bound by their offer when it was accepted, then the plaintiffs ought not to be bound till after they had received a notification that the defendants had received their answer and assented to it, and that so it might go on ad infinitum. That the defendants must be considered, in law, as making, during every instant their letter was travelling, the same offer to the plaintiffs, and that the contract was completed by the acceptance of it: and that, as the delay in notifying it arose from the mistake of the defendants themselves, it was to be taken against them, that the answer had been received by course of post. I am unable to see how this conclusion can be resisted. The learned reporter of McCulloch v. The Eagle Insurance Company, has attempted to distinguish it from Adams v. Lindsell, principally on the ground that a treaty respecting insurance is necessarily...