Robinson v. Continental Ins. Co.

• Decision Date: 18 October 1889
• Citation: 43 N.W. 647,76 Mich. 641
• Court: Michigan Supreme Court
• Parties: ROBINSON v. CONTINENTAL INS. CO.

43 N.W. 647

76 Mich. 641

ROBINSON v. CONTINENTAL INS. CO.

Supreme Court of Michigan

October 18, 1889

Error to circuit court, St. Clair county.

Action by Walter Robinson against the Continental Insurance Company on a fire policy. Judgment for defendant. Plaintiff appeals.

LONG J.

This action is brought to recover for a loss by fire of property insured under a policy issued by defendant company. The policy was issued on the 3d day of August, 1885, and was to continue in force until July 27, 1888, being three years from the date of the approval of the written application therefor (signed by the plaintiff) by the officers of the company at their office in Chicago. The loss occurred on October 7 1886. The court below directed the verdict for the defendant. Plaintiff brings error. The following condition appears upon the face of the policy of insurance: "But it is expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any promissory note or obligation, or part thereof, given for the premium, remains past due and unpaid." It appeared upon the trial in the court below that the application for insurance was made to a solicitor of the company, and at the time of the application a note for sum of $8.60 was executed by the plaintiff, payable on February 1, 1886, in part payment of the premium, in case the risk was accepted. The policy was afterwards made and delivered to the plaintiff, and at the time the fire occurred the note had not been paid. It was past due from February 1 1886. On March 30, 1886, this note had been sent by the defendant company to the First National Bank of Port Huron Mich., for collection. On October, 9, 1886, two days after the fire, the plaintiff called at the bank, paid and took up the note, and the proceeds of the note were sent by the bank to the defendant at Chicago. Immediately after the defendant became advised of the fact that the note had remained unpaid until after the fire occurred, it returned the money to the plaintiff, who admits having received it. Defendant company denies all liability.

The court below, we think, was correct in holding that no recovery could be had. The case falls within the ruling of this court in McIntyre v. Insurance Co., 52 Mich 188, 17 N.W. 781. The stipulation was one which the company had a right to make. It was inserted in the policy, and the language of it was...