Kollitz v. Equitable Mutual Fire Insurance Company

• Decision Date: 27 May 1904
• Docket Number: 13,843 - (83)
• Citation: 99 N.W. 892,92 Minn. 234
• Parties: HERMAN KOLLITZ v. EQUITABLE MUTUAL FIRE INSURANCE COMPANY
• Court: Minnesota Supreme Court

99 N.W. 892

92 Minn. 234

HERMAN KOLLITZ v. EQUITABLE MUTUAL FIRE INSURANCE COMPANY

Nos. 13,843 - (83)

Supreme Court of Minnesota

May 27, 1904

Action in the district court for Hennepin county to recover $2,400 upon a policy of fire insurance. The case was tried before Brooks, J., who found in favor of plaintiff for $1,415.79. From an order denying a motion for a new trial, defendant appealed. Affirmed.

SYLLABUS

Standard Insurance Policy.

The Minnesota standard form of fire insurance policy provided by section 53, c. 175, p. 417, Laws 1895, as amended by chapter 254, p. 468, Laws 1897, though dictated by the statute, must be construed by the same rules as similar contracts voluntarily entered into. Conditions of insurance found in an application, but not embraced in the terms and conditions of the policy itself, as required by section 52 (page 417) of that statute, are inoperative and of no effect.

Payment of Premium.

Plaintiff signed and delivered to defendant an application for a fire insurance policy, which contained a provision to the effect that the policy issued thereon should be held suspended if the premium was not paid within ten days after delivery of the policy. The policy was issued and delivered on February 20, 1903; the property insured was destroyed by fire on March 3 following. On the next day plaintiff made proof of loss and tendered payment of the amount of the premium to defendant, which it refused to accept, denying liability under the policy, for the failure of plaintiff to pay the premium within the time prescribed by the application. It is held that, by delivering the policy without a prepayment of the premium, defendant must be taken to have extended credit to plaintiff, and the policy was in full force at the time of the fire. The condition found in the application, requiring payment of the premium within ten days after the issuance of the policy, was a condition of the insurance, and, not being embodied in the terms of the policy itself, was ineffectual to defeat liability for the loss.

Tender.

The tender of a bank check in payment of a debt is good, where it is refused, not on the ground that it is not lawful money, but upon some other ground which is not well taken.

John M. Rees, for appellant.

Cohen, Atwater & Shaw, for respondent.

OPINION

BROWN, J.

Action to recover upon an insurance policy, in which plaintiff had judgment in the court below, and defendant appealed from an order denying its motion for a new trial.

The facts are as follows: On February 20, 1903, defendant issued and delivered to plaintiff a fire insurance policy of the Minnesota standard form, thereby insuring plaintiff's building, and merchandise contained therein, against loss by fire for the term of one year from that date. The policy delivered to the plaintiff contained an acknowledgment of the receipt of the premium therefor, though it had not in fact been paid. On March 3, following the issuance of the policy, plaintiff's building was destroyed by fire, and he suffered damages by reason thereof to the amount of about $1,400. The day after the fire, plaintiff rendered a statement of his loss to defendant in the form of proof required by the terms of the policy, and at the same time mailed defendant a check for $84 in payment of the premium. The proof and check were received by defendant through the mail on March 6, and on the following day the check was returned by mail, with a statement that defendant refused to accept the same, on the ground that, by the terms of the application under which the policy was issued, the premium was payable within ten days of the receipt of the policy; and, as it had not been paid within that time, the policy was not in force, and no liability attached thereunder.

The trial court found that, by the delivery of the policy without requiring prepayment of the premium, defendant extended credit to plaintiff, and the policy was in full force when the loss occurred. Defendant's claim that the policy was suspended and inoperative at the time of the fire is based upon the following clause in the application respecting the payment of the premium, namely,

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