Home Ins. Co. of Columbus v. Curtis

• Decision Date: 12 October 1875
• Citation: 32 Mich. 402
• Court: Michigan Supreme Court
• Parties: The Home Insurance Company of Columbus, Ohio v. Lorenzo B. Curtis

32 Mich. 402

The Home Insurance Company of Columbus, Ohio v. Lorenzo B. Curtis

Supreme Court of Michigan

October 12, 1875

Submitted on Briefs, June 18, 1875

Error to Saginaw Circuit.

Judgment affirmed, with costs.

Moore & Griffin, for plaintiff in error.

Gaylord & Hanchett, for defendant in error.

OPINION

Marston, J.:

This was an action of assumpsit, brought to recover upon a policy of insurance, issued to Aaron Linton and made payable, in case of loss, to defendant in error, as his interest in the property insured, as mortgagee thereof, should appear. Defendant pleaded the general issue.

It appeared on the trial that Linton made a written application to the company for this insurance, in which he stated, in answer to a special question, that the property sought to be insured was mortgaged to the amount of five thousand dollars. This application was made a condition of the insurance, and a warranty upon the part of the assured that the facts therein stated were true. It also appeared that at the time this application was made and the policy issued, the property insured was mortgaged for a much larger amount.

The court was asked to charge the jury, that under this state of facts the plaintiff could not recover. The request was refused, and plaintiff in error excepted.

Under the issue in the case, such a defense was not admissible. Circuit court rule 104 provides that in case the company shall rely, in whole or in part, upon the failure of the plaintiff to perform or make good any promise, representation or warranty, not contained in the policy, but set forth in any other paper or instrument in the hands of the insurer, the notice under the general issue shall declare the same, and indicate the breach relied on. No notice of any such defense was given in this case. But it was insisted that as the fact that the property was mortgaged for more than five thousand dollars appeared from the plaintiff's own showing, the defendant could therefore insist upon the breach of warranty as a defense under the plea of the general issue, although there was no notice attached thereto indicating such breach.

This position, we think, is not correct. The defense was one which the company had a right to waive, and the fact that no notice of such a defense was attached to the general issue would give counsel for plaintiff to understand that the company did not intend to rely upon any such breach, and would be likely therefore to prevent the plaintiff's counsel from making such preparation upon that point as they otherwise might do. The mere fact that the whole or any portion of the evidence showing such breach was incidentally introduced by the plaintiff as a part of his case, would make no difference, as the case must be disposed of in accordance with the issue joined between the parties. This question was not in issue, and the court therefore properly refused to charge as requested.--Peoria Ins. Co. v. Perkins, 16 Mich. 380.

There was evidence introduced tending to show that at the time the insurance was effected it was understood that credit was to be given for the premium; that the...