O'Rielly v. London Assurance Corp.

• Decision Date: 16 March 1886
• Citation: 101 N.Y. 575,5 N.E. 568
• Parties: O'RIELLY v. LONDON ASSURANCE CORPORATION.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 575

5 N.E. 568

O'RIELLY

v.LONDON ASSURANCE CORPORATION.¹

Court of Appeals of New York.

Filed March 16, 1886.

Appeal from order of general term, supreme court, Fourth department, affirming judgment for plaintiff.

Louis Marshall, for appellant.

Gray & Kline, for respondent.

EARL, J.

From 1876 until after the commencement of this action, one Amos Jackson was the agent of the defendant at Jordan, in this state, under a written appointment by which his powers were limited and described as follows:

‘To receive proposals for insurance against loss and damage by fire in Jordan and vicinity; to fix rates of premiums; to receive moneys, and to countersign, issue, renew, and consent to the transfer of policies signed by the managers for the United States for the London Assurance Corporation, subject to the rules and regulations of said company, and such instructions as might be given from time to time by its managers.’

He was furnished by the defendant with blank policies, signed by its secretary, which he filled up when applications for insurance were made to him. He entered the insurance effected by him in books kept by him, made to the company daily and monthly reports of his transactions, and made monthly remittancesof premiums. On the fourteenth day of August, 1879, he issued a policy to one Nicholas Craner upon a building owned by him in the village of Jordan, insuring him against loss by fire to the amount of $1,500, for one year from that date. The policy contained the following provisions:

‘This insurance (the risk not being changed) may be continued for such further time as shall be agreed on, provided the premium therefor is paid and indorsed on this policy, or a receipt given for the same; and it shall be considered under the original representation, and for the original amounts and divisions, unless otherwise specified in writing.’ ‘This corporation shall not be liable by virtue of this policy, or any renewal thereof, unless the premium thereof shall be actually paid.’

In July, 1880, about four weeks before the expiration of the policy, Jackson went to Craner, and had the following conversation with him, as detailed by Craner in his evidence:

‘He came in and said I had better put another thousand dollars upon the building. He wanted to know if I was not ready. I said I would run a little risk myself, but I thought that I would not then. Then he spoke about the other, and said it would not be but fifteen dollars the next year, and that was low. I told him I thought it was very reasonable, but that I would run some risk myself. I don't know whether he said when it expired. He said he wanted to put on another thousand. He did some little trading, I guess, with me at the time. He didn't say any more then. That is all the conversation I remember at the time.’ Question. ‘Did you state to him that you would pay the policy?’ Answer. ‘Nothing was said about it. I told him to renew the policy; it was fifteen hundred dollars, and he wanted a thousand more. I understood him to say he would renew it.’

Craner's son testified that he heard the same conversation, and he stated it as follows:

‘Jackson wanted to put on a thousand dollars more. Father said he thought he would run some insurance himself. Jackson thought it would be but one per cent. more now, or fifteen dollars for fifteen hundred dollars, Father said he knew it was low, but that he would carry but fifteen hundred dollars. Jackson said he was a good customer of father's, and would like some of his insurance business. Father said he would carry that; and Jackson said, ‘All right;’ he would renew it for another year. My father told him at the store, ‘All...