Birmingham v. Empire Insurance , 42 Barb. 457 ( 1864 )

By the Gourt,

James 0. Smith, J.

The conditions annexed to the policy of insurance, and, by its terms, forming a part thereof, require that applications for insurance “ shall be made according to the printed forms of the company,” and shall specify, among other things, “the nature of the applicant’s title, if less than fee simple and they also provide “that any misstatement or concealment relative to any of the foregoing requirements * * * shall render the insurance void.” The plaintiff, in his written application for insurance, which was in the requisite form, represented that he owned the property which he proposed to have insured, hy virtue of an article of agreement with Eliza 0. Chapin. The agreement, which was given in evidence, was for the sale by Miss Chapin !o the plaintiff, of a certain village lot in Canandaigua, therein described by metes and bounds, without any exception or reservation, for a certain sum of money therein specified, to be paid by the plaintiff. The dwelling house, the subsequent destruction of which by fire has given rise to this action, was on the lot when the agreement of sale was entered into, and also when the insurance was applied for and effected. There is no evidence that the plaintiff represented, in his application, that he owned the dwelling house as a chattel not affixed to the soil. Upon this state of facts I am of opinion that the contract of insurance related solely to the interest which the applicant had in the building, as the vendee in possession of the soil on which it stood, under the subsisting executory contract referred to, and that the court below properly overruled the plaintiff’s offer to prove that “ the building in question was a chattel not affixed to the freehold, and that at the time of the insurance he was the owner of it, and continued to be the owner up to the time of the fire.” The statement in the application, respecting the nature of the plaintiff’s title, was a warranty, and it being untrue, the policy did not take effect. The defendants did not insure the building as a chattel. The agreement of the parties precludes all inquiry as to whether the plaintiff had any other insurable interest than that warranted; or as to whether the thing warranted was material to the risk. (Burritt v. The Saratoga County Mutual Fire Insurance Company, 5 Hill, 188.)

The ruling may also be sustained on the ground, that as the insured was called upon by the insurers to communicate the nature of his interest in the property, he was bound to state it accurately and fully; (1 Smith’s Lead. Cas. 637-8, and cases cited;) especially in view of the condition above referred to, that any misstatement or concealment relative to any of the requirements in said condition should avoid the insurance. (Id. 641, 2, and cases cited.)

The court also properly overruled the plaintiff’s offer to show that at the time of the application he told the defendant’s agent that Miss Chapin did not own the building, but that he, the plaintiff, did, and had purchased it before he took the contract for the land. It was an offer to contradict by paroi the clear and explicit statement in the written application, respecting the plaintiff’s title. (Jennings v. The Chenango County Mutual Insurance Co., 2 Denio, 75, and cases cited by Jewett, J.)

The only remaining question is whether at the time of the fire, the plaintiff had an insurable interest in the building, under the contract with Miss Chapin. The contract provided that the plaintiff was to pay, for the lot, the sum of #175, in ten equal annual payments, with interest to be computed from 1st March, 1860, and that on such payments being made, in full,, to the vendor, she was to execute a deed. The vendee was to have immediate possession of the premises. The contract further provided that if the vendee should fail to perform the contract, or any part thereof, the vendor, immediately after such failure, should have the right to declare the same void, and retain whatever had been paid thereon, and all improvements that had been made on the premises, and might consider and treat the vendee as her tenant holding over without permission, and might take immediate possession of the premises and remove the vendee therefrom. It was proved that in September, 1861, the plaintiff having paid nothing, the vendor notified him to Surrender possession of the house and lot, and that in Octoher of that year the plaintiff complied with the demand, and voluntarily removed from the premises. Some testimony was given, on his part, tending to show that a- few articles of personal property belonging to him remained in the house till it was burned, but he did not claim, on the trial, that there was any question of fact respecting the ¿surrender of possession, to be submitted to the jury. The arrangement above stated terminated -his insurable interest in the building, under the contract. The contract became utterly void, and no action for a specific performance, or for the recovery of damages, could be maintained upon it, by either party.

[Monroe General Term, June 6,1864.

As the interest of the plaintiff, in the premises, was thus terminated, independently of the legal proceedings to dispossess him, it is unnecessary to inquire whether those proceedings were valid.

Some other questions, of less importance, are raised by the exceptions in the case, but it seems to me obvious that they were correctly decided.

The defendant is entitled to judgment on the verdict.

Ordered accordingly.

J. O. Smith, Welles and JS. Darwin Smith, Justices.] .