Ins. Co. of North America v. Bird

• Decision Date: 24 October 1898
• Citation: 51 N.E. 686,175 Ill. 42
• Parties: INSURANCE CO. OF NORTH AMERICA v. BIRD et al.
• Court: Illinois Supreme Court

175 Ill. 42

51 N.E. 686

INSURANCE CO. OF NORTH AMERICA

v.BIRD et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, Second district.

Assumpsit by John W. Bird and others against the Insurance Company of North America. From a judgment of the appellate court (74 Ill. App. 306) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

Thomas Bates and D. R. Burke, for appellant.

Lincoln & Stead and Reeves & Boys, for appellees.

CARTER, J.

This was an action of assumpsit, brought in the circuit court of Lasalle county by appellees, upon an alleged parol contract of insurance, against appellant, in which appellees recovered a judgment for $1,100, which was, on appeal to the appellate court, affirmed, and appellant has further appealed to this court.

The appellees' property had been insured in the appellant company through Baker & Williams, its agents at Streator, Ill., for a number of years, a new policy having been issued each year. While holding such a policy, expiring January 18, 1893, on their store building and furniture and organ located in Kangley, Ill., for $1,375, the appellee Bird, about Christmas, 1892, as he testified, visited the agents' office, and told Williams that he had discovered a mistake in the description of the lot, and wanted a new policy written out at once, and that correction made; that Williams said, ‘All right,’ and made a memorandum of it, and that he (Bird) paid Williams something over $26 as the premium, and took a receipt for it; that the policy was never delivered to him; that on November 25, 1893, the building was destroyed by fire, and also the receipt, and on application to Williams the policy could not be found, and appellant afterwards refused to pay the loss. Williams testified that he had no recollection of any such conversation, and showed that he had made no entries concerning the alleged policy, or the receipt of the premium, in his books. He denied receiving the money and the making of the alleged contract. There was thus presented a direct conflict of testimony on the vital point whether or not a parol contract of insurance had been entered into between Bird and Williams.

It is contended that the contract lacked a number of essential elements of such contracts, namely, that the time when the policy was to attach, the time it was to run, and the company in which it was to be written, could not be ascertained from the testimony with certainty. On this subject the court gave the following instruction for the appellant: ‘The court instructs the jury that, in order to make a valid contract of insurance, several things must concur: First, the parties must agree upon the company in which the insurance is to be placed; second, the amount of the insurance must be...