Lovejoy v. Augusta Mutual Fire Insurance , 45 Me. 472 ( 1858 )

The opinion of the Court was drawn up by-

Hathaway, J.

Assumpsit on a policy of insurance, by which the defendant company insured the plaintiff two hundred and fifty dollars, on a store, and five hundred dollars on a stock of goods in the same store, as his property, against loss by fire, on his application of the same date with the policy. The store was destroyed by fire, Dec. 5, 1854.

The charter of the defendant company, their by-laws and the plaintiff’s application, are parts of the policy.

In his application the plaintiff represented himself to be the owner of the store and goods. He requested insurance on his store and goods. He stated that the store was occupied by the owner, and that there was no incumbrance on it, and added, “ I have given the above description knowing that any misrepresentation or suppression of material facts, will destroy my claim upon the company for indemnity.”

By article 10 of the by-laws, “ in cases where no permanent lien can be created on merchandize, or other personal property, the directors shall require a surety on the deposit note.” No surety was given on the plaintiff’s deposit note, and none seems to have been required.

The case finds “ that, at the time when the application was made, the store in question and the lot of land on which the same was situate, were the property of Olive Emery, and that, July 30, 1853, she conveyed the same to Thomas A. White, who remained the owner of the same up to the time the store was burned.

The contract of insurance was entire, and the representations made by the plaintiff, in his application for insurance, of his ownership of the store, being of a material fact, and being false, the policy was, therefore, void; (Fiersmuth v. Agawam Mut. Fire Ins. Co., 10 Cush. 587; 11 Cush. 280; 6 Cush. 340; Battles v. York Co. Mut. Fire Ins. Co., 41 Maine, 208,) and this action cannot be maintained.

As agreed by the parties, there must be

Judgment for the defendants.

Tenney, C. J., Rice, Appleton, May, and Davis, J. J., concurred.