Queen of Arkansas Insurance Co. v. Cooper-Cryer Co.

• Decision Date: 17 December 1906
• Parties: QUEEN OF ARKANSAS INSURANCE COMPANY v. COOPER-CRYER COMPANY
• Court: Arkansas Supreme Court

98 S.W. 694

81 Ark. 160

QUEEN OF ARKANSAS INSURANCE COMPANY v. COOPER-CRYER COMPANY

Supreme Court of Arkansas

December 17, 1906

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge affirmed.

Judgment affirmed.

A. W Files and Carmichael, Brooks & Powers, for appellant.

1. Placing the most favorable construction upon the testimony introduced by plaintiff, the Shaws were in arrears when the fire occurred. The conditions in the note were a part of the policy, and a breach of its conditions was a breach of the conditions of the policy. 93 S.W. (Ark.), 752; Vance on Ins 237. There was no substantial compliance with the clause with reference to keeping a set of books. Such a set of books should be kept as will show from the inventory and cash sales the specific goods sold, in order to arrive at the goods on hand at the time of the fire. 95 S.W. 481. Where it is not shown that the agent has other authority than soliciting insurance and collecting the premiums therefor, it can not be presumed that he had authority to waive a forfeiture in the matter of transfer of property and assignment of policies.

2. It is provided in the note that the contract of insurance is to be considered null and void so long as the note or any part of it remains unpaid. Hence the first instruction was erroneous. Supra.

3. The second instruction was erroneous in that there was no evidence that the company waived the transfer of the policy, and because it does not inform the jury what would amount to a waiver.

4. The court erred in instructing the jury that it was for them to say whether Young was authorized by the company to waive the provision requiring indorsement of the transfer on the policy. 75 Ark. 25.

J. H. Harrod, for appellee.

1. The note introduced by the company shows credits of $ 1.00 per week for three weeks next preceding the fire, and Shaw testified that the agent agreed to extend the payment to July 12. It is immaterial that the agent was without authority to extend the note, since the company ratified his act by accepting payments and crediting them on the note.

2. The jury, after being properly instructed, found that Young had authority to bind the company by waiving the provision requiring indorsement of the transfer of the policy.

3. Appellant's abstract fails to show that proper books were not kept.

OPINION

HILL, C. J.

This was an action on a fire insurance policy issued to B. G. Shaw, by him alleged to have been transferred to George Shaw, and after fire destroyed the property insured, a stock of goods, assigned by George Shaw to appellee. After judgment against the insurance company, it appealed.

1. The insurance company took a premium note, which was past due when the fire occurred, and it contained the usual stipulation that the insurance should cease if note became overdue. Appellee relied upon waivers of various clauses of the policy and claimed an extension of the note, and these questions went to the jury under proper instructions. It is insisted that the verdict is without evidence to support it and that question turns on the capacity of the agent, Young, to bind the company by his waivers, knowledge or conduct in the several matters in issue.

There was evidence tending to prove that Young extended time of payment of the note until a date beyond the...