McMartin v. Cont'l Ins. Co. of N.Y.

• Decision Date: 08 July 1889
• Citation: 41 Minn. 198,42 N.W. 934
• Parties: MCMARTIN v CONTINENTAL INS. CO. OF NEW YORK.
• Court: Minnesota Supreme Court

41 Minn. 198

42 N.W. 934

MCMARTINvCONTINENTAL INS. CO. OF NEW YORK.

Supreme Court of Minnesota.

July 8, 1889.

(Syllabus by the Court.)

Evidence considered, and held insufficient to show a waiver of a breach of a condition in a policy of insurance.

Appeal from district court, Dodge county; BUCKHAM, Judge.

Action by Duncan McMartin against the Continental Insurance Company of New York. Action dismissed, and plaintiff appeals.

Geo. B. Edgerton, for appellant.

A. C. Hickman, for respondent.

GILFILLAN, C. J.

Action on a fire insurance policy. The policy was for five years, commencing April 22, 1883. The premium was $6.50 per year,-the first $6.50 being paid at the issuance of the policy; the remainder secured by the note of the insured, payable in installments of $6.50 each, on the 1st day of May, in the years 1884, 1885, 1886, and 1887. The policy, and also the note, contained a condition to the effect that, if default should be made in the payment of any of such installments, the liability of the company on the policy should cease, and remain suspended during the continuance of such default; and on payment of the installment as to which there should have been a default the liability should reattach, and be in force only from the time of such payment. The installments for 1884 and 1885 were paid. Those for 1886 and 1887 were not paid, nor did the insured offer to pay them until after the fire, which took place February 7, 1888. The defendant relies on the default as a defense. To avoid its effect, plaintiff claims that at the time of making the application for the policy he was informed by the agents of the company that he should have notice from it when each installment should become due, and that, relying on that and receiving no notice, he did not pay the installments, and he made default for no other reason, and on the trial he gave evidence in support of that claim. But, without determining whether this matter would in any event excuse the default, he in his testimony admitted that in November, 1887, he received notice of the default in the last two installments. He does not seem to have taken any steps in regard to this notice, except to deny to the company that he owed it anything. He gives no adequate reason for disregarding the notice. He could not expect the company to do more than call his attention to the fact, and it was then his business to ascertain if it was the fact.

He also claims that after the fire the company waived...