Wilson v. New Hampshire Fire Ins. Co.

• Decision Date: 24 October 1885
• Citation: 140 Mass. 210,5 N.E. 818
• Parties: WILSON v. NEW HAMPSHIRE FIRE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 210

5 N.E. 818

WILSON

v.NEW HAMPSHIRE FIRE INS. CO.

Supreme Judicial Court of Massachusetts.

Filed October 24, 1885.

This was an action of contract upon a policy of insurance against loss by fire. The case was submitted to this court upon the following agreed facts:

Homer C. Strong, an insurance broker, on April 12, 1883, in accordance with instructions from the plaintiff, applied to S.C. Warriner, an insurance agent, for a policy of insurance of $2,000, in some good company, on the plaintiff's block then in process of erection, in Palmer. Warriner at once delivered to Strong a policy, countersigned by the former as agent of the Union Insurance Company of Philadelphia, Pennsylvania, duly executed by that company, insuring the plaintiff against loss by fire from April 13, 1883, for three years, in the sum of $2,000, on the property in Palmer. Strong then delivered the policy to the plaintiff, who accepted it, and Warriner charged the premium to Strong, with whom he had an open account, and credited the same to the company. On April 23, 1883, Warriner received from the company a letter instructing him to cancel the policy. He entered the risk on the policy-register of the defendant company, and wrote a policy in the same form and date, and for the same amount and premium, as the other policy, in the defendant company, whom he immediately notified of the same. The printed portions of both policies were in the form required by Pub.St. c. 119, p. 139. At the time when he wrote the policy in the defendant company, Warriner credited the company with the premium, according to the custom in such cases. On April 28, 1883, the building insured was destroyed by fire, about 1 o'clock in the morning. About 7 o'clock on the same morning Warriner, who had no knowledge of the loss, mailed a letter to Strong, dated April 27th, inclosing the policy in the defendant company, and requesting an exchange of policies, which was received by Strong on the same morning. On April 26, 1883, the defendant wrote to Warriner, declining the risk, which letter was received by him on April 28th, after he had mailed the policy to Strong. On the morning of April 28th Strong notified Warriner by telegraph of the loss, after the receipt of the policy by Strong, and Warriner received the telegram. In the afternoon of April 28th, Warriner went to Palmer, and the plaintiff, at Strong's request, and in the presence of Warriner, handed the policy in the Union Company to Strong, and accepted the policy in the defendant company in exchange; and Strong gave the first-named policy to Warriner, with the...