Perry v. Insurance Company , 67 N.H. 291 ( 1892 )

On the question of agency, the defendants' previous course of dealing with Stevens Son was competent evidence. Kent v. Tyson, 20 N.H. 121, State v. Foster, 23 N.H. 348, 353; Prescott v. Flynn, 9 Bing. 19. It is established by the verdict that Stevens Son, in preparing and forwarding the application, in delivering the policy to the plaintiff and receiving the premium, were the defendants' agents. The defendants approved the application, executed a policy, and sent it to Stevens Son with instructions, express or implied, to deliver it to the plaintiff and collect the premium. There was no evidence that prior to its delivery the plaintiff had notice by mail or otherwise that his application for insurance was accepted. Upon these facts the contract was made, and concluded by the delivery and acceptance of the policy, — not because of its delivery, but because until that moment the plaintiff had no notice of the acceptance of his application. Prior to that time the plaintiff was at liberty to revoke his application, and the defendants to withdraw their acceptance and countermand their instructions for the delivery of the policy. A proposition does not become a contract until the maker or his agent is notified of its acceptance. Beckwith v. Cheever, 21 N.H. 41; Stebbins v. Lancashire Ins. Co., 60 N.H. 65, 70; Dickinson v. Dodd, 2 Ch. Div. 463.

It being determined that Stevens Son were the defendants' agents, there was no evidence tending to show that the contract was made in Massachusetts: it is therefore not necessary to consider whether the court erred in instructing the jury, or in denying the instructions requested on the question whether the contract was completed in that state or in New Hampshire. The validity, construction, and effect of the contract, and the rights, of the parties under it, are to be determined by the laws of this state. "Chapter 172 of the General Laws shall be a part of every contract of insurance to which said chapter is applicable, and said chapter and this act shall be plainly printed in every such contract. No waiver of any part of said chapter or of this act shall be set up by the insurer, and any stipulation of the contract in conflict with this act shall be void." Laws 1879, c. 13, s. 1. Chapter 172, as amended, provides among other things that "No policy of insurance shall be avoided by reason of mistake or misrepresentation, unless it appears to have been intentionally and fraudulently made;" that "all statements of description or value in an application or policy of insurance are representations and not warranties; erroneous descriptions or statements of value or title by the insured do not prevent his recovering on his policy unless the jury find that the difference between the property as described and as it really existed contributed to the loss or materially increased the risk, . . . nor shall any misrepresentation of the title or interest of the insured in the whole or a part of the property insured, real or personal, unless material or fraudulent, prevent his recovering on his policy to the extent of his insurable interest;" that "If any company shall issue any policy upon an application prepared by a third person assuming to act as their agent or otherwise, they shall be affected by his knowledge of any facts relating to the property insured as if they were stated in the application." G. L., c. 172, ss. 2, 3; Laws 1885, c. 73, s. 1.

By the statute, the plaintiff's agreement that his statements in the application "shall be deemed and taken to be promissory warranties," and that the defendants "shall not be bound by any act done or statement made by or to any agent or other person which is not contained in the application," is made invalid; it has no legal effect. The jury found that the plaintiff at the time of the application informed Stevens Son of the Berry mortgage. The defendants are chargeable under the statute, and would be if there were no statute, with their agents' knowledge of its existence as if the fact were stated in the application. The statute is in this respect merely declaratory of the common law. Marshall v. Columbian Insurance Co., 27 N.H. 157; Campbell v. Merchants and Farmers' Insurance Co., 37 N.H. 35; Clark v. Union Insurance Co., 40 N.H. 333; Patten v. Merchants' Insurance Co., 40 N.H. 375, 381-383; Leach v. Republic Insurance Co., 58 N.H. 245; Eastman v. Provident Association, 65 N.H. 176.

But the issue submitted to the jury, whether the plaintiff at the time of the application informed Stevens Son of the mortgage, was immaterial. Had the jury found the other way on that question, the result would be the same. "The defendants made no claim that the plaintiff failed to have the existence of the Berry mortgage noted in the application and policy by reason of fraud," — in other words, they conceded that the omission was an innocent mistake. Under the statute, a policy is not avoided by such an error in the applicant's statement of his title. Tuck v. Hartford Insurance Co., 56 N.H. 326, 331; Leach v. Republic Insurance Co., 58 N.H. 245.

There was competent evidence tending to show that the defendants waived the proofs of loss required by the policy, and the question was properly submitted to the jury. The instructions given them were correct. To permit the defendants to avail themselves of the plaintiff's omission to make the proofs of loss which they had induced him to abstain from furnishing would do him a great wrong, and it was not improper so to inform the jury.

Although the policy was payable in case of loss to the mortgagee, Mary Simpson, to the extent of her mortgage debt, the action was properly brought in the name of the plaintiff. Folsom v. Orient Insurance Co.,59 N.H. 54; Hall v. Fire Association, 64 N.H. 405.

Judgment on the verdict.

CHASE, J., did not sit: the others concurred.