Lamberton v. Connecticut Fire Insurance Company
| Decision Date | 17 August 1888 |
| Citation | 39 N.W. 76,39 Minn. 129 |
| Parties | H. W. Lamberton v. Connecticut Fire Insurance Company |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Winona county, Start, J., presiding, refusing a new trial.
Order affirmed.
Lusk & Bunn, for appellant, cited Walsh v. Hartford Fire Ins Co., 73 N.Y. 5; Marvin v. Universal Life Ins Co., 85 N.Y. 278; Hankins v. Rockford Ins. Co., 70 Wis. 1; Gladding v. California, etc., Ins Ass'n, 66 Cal. 6; Kyte v. Commercial Union Assurance Co., 144 Mass. 43; Merserau v. Phoenix Mut. Life Ins. Co., 66 N.Y. 274; McIntyre v. Mich State Ins. Co., 52 Mich. 188; Cleaver v. Traders' Ins. Co., (Mich.) 32 N.W. 660; Insurance Co. v. Wolff, 95 U.S. 326; Enos v. Sun Ins. Co., 67 Cal. 621; McCormick v. Springfield F. & M. Ins. Co., 66 Cal. 361; Meyers v. Germania Ins. Co., 27 La. An. 63; Jewett v. Home Ins. Co., 29 Iowa 562.
Wm. Gale, for respondent.
The plaintiff recovered a verdict in this action upon a contract of fire insurance. This is an appeal from an order refusing a new trial. The construction and effect of the following provisions of the policy are to be considered: Some months prior to the destruction of the premises by fire they became, and thereafter remained, vacant; the assured in the mean time endeavoring to secure a suitable tenant. The local agent of the defendant at Winona, where the property was situated, who had issued this policy, knew that the house was vacant during all of this time, and in negotiations with the assured upon this subject he treated the policy as still continuing in force; so that, if the defendant was bound by his acts in this particular, it would be estopped to claim that its liability had terminated. He did not, however, notify the company of the fact, nor was there any written consent that the policy should remain in force.
The question is thus presented whether the conduct of the agent affected and bound the company. The position taken on the part of the company is that the power of the agent to bind the principal in this particular was, by the clause found at the close of the foregoing extract from the policy, so restricted that he could only do this by a written consent indorsed on the policy; and that, the assured being thus advised of the restrictions upon the power of the agent, the action of the latter was ineffectual to bind the company.
It is an important consideration that this policy does not impose any restriction upon the power of any particular agent, or class of agents; nor does it limit the power of some agents by conferring authority exclusively upon others; nor does it prescribe the manner in which alone a particular agent or class of agents shall exercise their authority. We do not therefore, express any opinion concerning the effect of such stipulations. The restriction here is so broad that it applies alike to every "officer, agent, or representative of this company;" and, as a corporation can only act through such agencies, the substance of the provision under consideration is that the company shall not be held to have waived any of the terms or conditions of the policy, unless its waiver be expressed by a written indorsement on the policy. That is to say, in other words, that one of the parties to a written contract, which is not required by law to be in writing, cannot, subsequent to the making of the contract, waive, by parol agreement, provisions which had...
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