Magnin v. Furgie

• Citation: 4 Haw. 467
• Parties: S. MAGNIN v. E. FURGIE.
• Decision Date: 17 March 1882
• Court: Supreme Court of Hawai'i

4 Haw. 467

S. MAGNIN v. E. FURGIE.

Supreme Court of Kingdom of Hawai'i.

March 17, 1882

January Term, 1882.

October 22, 1881.

ON EXCEPTIONS.

Syllabus by the Court

THE COMPLAINT SET FORTH a written agreement dated October 22 1881, reciting the receipt of the first annual premium for a policy of life insurance, application for which was made to defendant's Insurance Company, and that if approved by the company and a policy issued then the receipt was to be given up on delivery of said policy, but if application be rejected by the company then the premium paid was to be returned upon tender of receipt.

The complaint alleged that it was agreed orally by the parties at the time of paying the money and giving the receipt that if the policy was not issued and delivered to plaintiff on the arrival of the steamer City of New York in November, 1881 then the money should be refunded; the steamer arrived on November 29th, and the policy was not delivered.

The complaint was demurred to.

HELD the contract was not ambiguous and as no time was expressed therein when the money should be refunded, the law implies that it must be a reasonable time. Parol contemporaneous evidence not admitted to vary or contradict a written agreement.

Demurrer sustained.

J. M Davidson for plaintiff.

E. Preston for defendant.

Judd C. J., McCully and Austin, J.J.

OPINION

MCCULLY, J.

The complaint in this case sets forth a receipt embodying a contract, in the following form:

The Pacific Mutual Life Insurance Company of California; Sacramento, California.

Received from Julius Magnin, of Honolulu, the sum of $335.10 in silver to become the first annual premium on an assurance of $5, 000 on the life of himself for the benefit of himself.

Application for which has been made to the Pacific Mutual Life Insurance Company of California. Should said application be approved by said company, and a policy of assurance corresponding therewith be issued, then the receipt is to be given up on delivery of said policy; but should said application be rejected by said company, then the amount of premium money as above named is to be returned upon tender of this receipt. E. FURGIE, Agent.

And further alleges that at the time of the payment of the money and giving the receipt, it was covenanted and agreed by and between the parties orally, that if the policy of life insurance was not issued on the application to be made by the defendant, and was not delivered by the defendant to the plaintiff on the arrival of the steamer City of New York at Honolulu on her return trip from San Francisco, in the month of November, 1881, then the said amount should be refunded and the application cancelled, with averment that the steamer arrived on November 29, the policy demanded and not delivered, etc.

The demurrer is based on the rule that 1 Greenleaf Ev., Section 275, parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. The plaintiff per contra, that the parol contemporaneous agreement supplies a definite term, namely, the day of the arrival of the steamer for what was left undetermined and ambiguous in the written contract.

The doctrine controlling this case is compendiously stated by Wells, J., in Stoops vs. Smith, 100 Mass. 63, in these words: " The principal of law is clear and well settled that the obligation of a written contract cannot be abridged or modified by or made conditional upon another preceding or contemporaneous parol agreement, not referred to in the writing itself. But it is equally...