Salisbury v. Hekla Fire Insurance Company of Madison, Wisconsin

• Decision Date: 29 November 1884
• Citation: 21 N.W. 552,32 Minn. 458
• Parties: T. G. Salisbury and others v. Hekla Fire Insurance Company of Madison, Wisconsin
• Court: Minnesota Supreme Court

21 N.W. 552

32 Minn. 458

T. G. Salisbury and others v. Hekla Fire Insurance Company of Madison, Wisconsin

Supreme Court of Minnesota

November 29, 1884

Appeal by defendant from an order of the district court for Hennepin county, Lochren, J., presiding, refusing a new trial.

Order affirmed.

Atwater & Hill, for appellant.

J. S Root, for respondent.

OPINION

Gilfillan, C. J.

Defendant, by its agent at Minneapolis, made orally a contract with plaintiffs, acting by their agent, insuring plaintiffs' building used as a manufactory in the sum of $ 150, and the stock and machinery therein in the sum of $ 350, against loss by fire, for a premium at the rate of 6 per cent. on the amount of insurance for one year, the risk to commence at once, to wit, February 17, 1883; a written policy to be made and delivered as soon as could be done. The premium was not then paid, and nothing was said as to when it should be. On the night of February 18th, the manufactory then running the property insured was destroyed by fire. On the morning of the 19th, after the fire, defendant's agent delivered to plaintiffs' agent a policy of insurance. February 23d, plaintiffs paid the premium. In the oral agreement nothing was said about any conditions or restrictions of insurance. In the policy delivered there was a condition that it should be void if the manufactory should run at night or overtime, or cease to be operated, without the consent of defendant endorsed on the policy.

The controversy is as to whether that condition attached to the contract of insurance under which the loss occurred. Was that condition a part of the contract existing at the time of the fire? Unless it was, it has no influence on the rights of the parties. Whether it was or not must be determined by what was said between them or their agents when the insurance was effected. The written policy made out by the defendant after the fire, of course, cannot be conclusive. Indeed, having been made after the liability accrued, it would be no evidence of the contract at all, were it not for its delivery to and retention by plaintiffs. Such delivery and retention may be taken as an admission by plaintiffs that it set forth the terms of the contract as agreed on which might be rebutted by proof of what the contract actually was. And in view of the fact indicated by the evidence, that the plaintiffs did not read it, it would not be very strong evidence as an...