Smith v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 20 July 1882
• Court: South Dakota Supreme Court
• Parties: Smith v. St. Paul Fire & Marine Ins. Co.

13 N.W. 355

3 Dak. 80

Smith

v.St. Paul Fire & Marine Ins. Co.

Supreme Court of the Territory of Dakota.

Filed July 20, 1882.

Appeal from judgment of district court of Cass county.Wilson & Ball, for appellant. H. F. Miller, for respondent.

HUDSON, J.

On the ninth day of September, 1880, the defendant issued to said plaintiff its policy of insurance, covering among other things two horses. Said policy was issued in consideration of the payment, at maturity, of a certain promissory note of $10.66 due November 1, 1880, and certain other installment notes to become due at future periods, all executed at the same time of the policy, and was the only consideration therefor. One of the conditions of insurance contained in the policy was that said company should not be liable under the policy for any loss or damage if any default should be made in the payment of any note or installment of any note in full, given in payment or part payment of premium under said policy, and that the company in no event should be liable for any loss or damage happening during the continuance of such default. The note first above referred to contained the following provision: “This note being given as consideration for insurance under the above-named policy, I consent that in case of default in the payment of the same in full, when due, the policy shall be null and void, and so remain until the note is paid; and if said policy becomes void by reason of non-payment of this note, it shall in no way affect the collection of this note in full.” The policy of insurance contained the further provision, viz.: “And it is further provided that on the payment by the assured or his assigns of all such notes, or installments of any such notes, in full, the liability of the company under the policy shall again attach and the policy thereafter be in force.”

The said first note was duly presented for payment, but was not paid at maturity. On the eighth day of November, 1880, a fire occurred, and the said horses were destroyed. On the twelfth day of November, 1880, the plaintiff forwarded by letter to the general agent at Fargo, Dakota territory, the amount due on said note, and in the same letter stated to the agent that his stable and the two horses were burned on the eighth inst., and requested him to come and see to it at once, adding, that, if they could make a settlement, he would like to insure more. The agent retained the money and indorsed upon the note “Paid in full November 12, 1880,” and returned the note, so indorsed, to the plaintiff, and, so far as appears, made no other reply to the letter. Subsequently the plaintiff forwarded proofs of loss to the defendant, as requested by the terms of the policy, but it does not appear that any response was made by the defendant, until this action was brought, either to the notice of loss or the proofs forwarded, when, in its answer to the complaint, it denied its liability under the policy, and alleged as a defense the default of the plaintiff in the payment of his said first note at maturity. The main question presented in this record is whether the defendant was in a position to maintain such defense to this...