New York Lumber & Wood Working Co. v. People's Fire Ins. Co.

• Citation: 96 Mich. 20,55 N.W. 434
• Parties: NEW YORK LUMBER & WOOD-WORKING CO. v. PEOPLE'S FIRE INS. CO.
• Decision Date: 01 June 1893
• Court: Supreme Court of Michigan

55 N.W. 434

96 Mich. 20

NEW YORK LUMBER & WOOD-WORKING CO. v. PEOPLE'S FIRE INS. CO.

Supreme Court of Michigan

June 1, 1893

Error to circuit court, Bay county; George P. Cobb, Judge.

Action by the New York Lumber & Wood-Working Company against the People's Fire Insurance Company on an insurance policy. There was a judgment for defendant, and plaintiff brings error. Judgment affirmed.

Hatch & Cooley, for appellant.

Elbert H. Gary, (O. F. Wisner, of counsel,) for appellee.

MONTGOMERY J.

The plaintiff corporation is engaged in the manufacture of lumber at East Tawas, Mich. On the 1st day of July, 1889, the defendant company issued to the plaintiff a policy of insurance in the sum of $1,250. This policy was written by Frank L. Wands, the company's agent at Bay City, and was sent to one James H. Schmeck, at East Tawas, for delivery. The policy expired on July 1, 1890, and no application for renewal was made by plaintiff. On the 5th of July, 1890, Mr. Wands prepared a new policy, dated July 1 1890, for one year, and forwarded it to Mr. Schmeck, in the expectation that it would be tendered to the plaintiff in renewal of the former policy. At the same time, another policy, of like amount, in another company, in which plaintiff had previously insured, was prepared, and forwarded in the same envelope. These policies were received by Schmeck on Sunday morning, the 6th of July. In the mean time, on Saturday, a fire had occurred, and the property covered by the policies had been consumed. The agent, Wands, learning of this on Sunday morning, telegraphed to Schmeck not to deliver the policies. Schmeck replied: "All right. Will return." On the same day, Smith, an agent of the plaintiff, was seen by Schmeck, and for the first time informed that the policies had been received, and was at the same time informed that they had been recalled. On Monday July 7th, Mr. Smith telegraphed to Schmeck, "Hold Wands' $2,500 policy." By mistake of Schmeck's clerk, as it would appear, the policies were not retained but were returned to Wands. On the 10th they were demanded of Wands by Smith, and on the 12th they were again demanded, and the premium for the first time tendered.

The sole question for our determination is whether a contract of insurance was effected. It is ingeniously argued by the plaintiff's counsel that the case is to be determined solely by reference to what took place in regard to the policy on secular...