Landers v. Cooper

• Citation: 115 N.Y. 279,22 N.E. 212
• Parties: LANDERS v. COOPER.
• Decision Date: 08 October 1889
• Court: New York Court of Appeals

115 N.Y. 279

22 N.E. 212

LANDERS

v.COOPER.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, fifth department.

Action by Frank Landers against Sidney Cooper, receiver of the Watertown Fire Insurance Company. Judgment was entered at special term on a verdict for plaintiff. From a judgment of general term, affirming this judgment, defendant appeals.

A. H. Sawyer, for appellant.

A. D. Wales, for respondent.

ANDREWS, J.

Two defenses are relied upon: First, that the building burned was not the building mentioned in the application and survey, and insured by the policy; and, second, that, when the policy in question was issued, there was a prior insurance on the building destroyed, in the Glens Falls Insurance Company, not consented to by the Watertown Fire Insurance Company, whereby, by the terms of the policy sued upon, it became void. The defendant, to establish the first defense, relied upon the following facts: (1) The policy, by its language, insures Landers in the sum of $800, ‘on the property described in the application and survey bearing even date therewith, and which is hereby referred to as forming a part of the policy, viz., $800 on his [Landers'] two-story dwelling-house, Afton, N. Y.’ (2) The application on which the policy was issued describes the property to which the application relates as situated in Afton, N. Y., and being a tenant-house two stories high, 16x24, with wing 16 x24, with two chimneys, and located 60 feet south of the dwelling-house of Landers, (the applicant,) and 60 feet west of a barn. This is an accurate description of the tenant-house near the dwelling-house of Landers, with the exception that its height is one and a half stories, and not two stories. (3) On the back of the application is a survey and diagram showing the dwelling-house, the tenant-house, (consisting of a main part and wing,) and the barn, their relative positions, and under the words ‘tenant-house’ is the word ‘risk.’ (4) The mill-house (the house burned) was situated half a mile from the dwelling-house of Landers, and was also a tenant-house. It was a building two stories high, 20x30 feet in size, without any wing, and having but one chimney. It was distant, at the nearest part, 37 feet from a steammill of Landers. It corresponded in no respect with the building described in the application and survey, with the single exception of height. (5) The application and survey were forwarded by Cannon, the agent, to the office of the company at Watertown, and the policy was issued thereon, and mailed by the company to Landers. The company had no information as to the risk, or of any negotiations between Cannon and Landers, other than was disclosed by the application. The plaintiff, notwithstanding this apparently conclusive evidence that the house insured was the tenant-house, and not the mill-house, has recovered for the loss, by fire, of the mill-house, upon certain extrinsic proof submitted to the jury. It was shown that Landers, prior to the issuing of the policy in question, held two policies of insurance in the Glens Falls Insurance Company, of $800 each; one on the tenant-house near his dwelling-house, expiring July 1, 1873, and one on the mill-house, expiring May 1, 1874, each for three years, at the same rate of premium. The local agent of the Glens Falls Insurance Company, in the spring or summer of 1873, removed, and sold out his business to Cannon, the local agent of the defendant's company, who transferred to him, among other things, an ‘expiration book,’ in which the two policies to Landers were entered,-one entry being, ‘Thomas Landers, Glens Falls; number of policy, 197; property, Afton, $800; premium, $4.80; expiring 1st of July, 1873;’ and the other, ‘Thomas Landers, Glens Falls Insurance Company; number 351; farm property in Afton, $800; premium, $4.80; rate, 60c.; expiring the 1st of May, 1874.’ It will be noticed that the entries do not show, on their face, to what particular building they severally apply. The plaintiff's version of the circumstances, which preceded the issuing of the policy in question, is substantially that the agent, Cannon, in the spring of 1873, met Landers, and informed him that the policy on the mill-house was about expiring, and asked him if he did not want it renewed, stating that the former agent of the Glens Falls Company had left, and he (Cannon) had his papers, and was doing his business; and that he was the agent of the Watertown Fire Insurance Company, which was a good company; and solicited Landers to take a policy in that compnay, to which he finally consented. The testimony of Landers to the point that the negotiation with Cannon related to a renewal of the policy on the mill-house is corroborated to some extent by other members of his family. The policy which expired in July, 1873, was the policy on the tenant-house. The policy on the mill-house did not expire until May, 1874. It was the policy on the tenant-house which needed to be renewed, and not the policy on the mill-house. But Landers relied, as he claimed, on the assurance of Cannon that it was the policy on the mill-house which would expire first, and thereupon authorized him to procure a new insurance upon that building policy. Within a short time after the conclusion of the negotiation, Cannon made out the application and survey, and signed the name of Landers to the application, and forwarded them to the defendant. The application and survey, as has been shown, related to the tenant-house, and not to the mill-house. Cannon, on the trial, contradicted the testimony of Landers and his witnesses as to the fact that the negotiation between himself and Landers related to the mill-house, and testified that the tenant-house was pointed out by Landers as the one upon which the policy was about to expire; and that the proposition on his part to procure a new policy related to the tenant-house, and not to the mill-house.

Upon this state of facts, and the additional fact, testified to by Landers, that he did not authorize Cannon to sign any application, and that he had no knowledge of the application or survey until after the fire, the court submitted to the jury to find whether the application was authorized by Landers, and instructed them that if it was made without his authority or knowledge, and he did not know of the representations therein, they should disregard the application and survey, and determine the case upon the point whether the negotiation between Landers and Cannon related to the mill-house, and instructed them in substance that, if they found that it did relate to the mill-house, and not to the tenant-house, the policy covered the mill-house, and the plaintiff was entitled to recover. The defendant, before the submission of the case to the jury, moved that the case should be dismissed on the grounds, among others, that the policy did not cover the mill-house, but the tenant-house, and also that, assuming that the policy covered the mill-house, there was a prior existing insurance thereon not consented to by the defendant.

We think the case was tried and submitted to the jury upon an erroneous view of the law. The action was brought distinctly and solely upon the policy of August 1, 1873, and to enforce the contract of insurance contained in that instrument. The building burned was the mill-house, and, unless the policy was upon that building, the plaintiff did...