Perry County Insurance v. Stewart , 19 Pa. 45 ( 1852 )

The opinion of the Court was delivered by

Lowrie, J.

Where one has entered into an agreement for the sale of his insured property, but has not made conveyance thereof, nor received the purchase-money, his interest in the property and policy is not thereby parted with, so as to bar his right of action on the happening of a loss.

Where the agent of an insurance company certified to his employers that he had surveyed certain property intended to be insured, and gave a written description thereof to the company, including a kitchen building not then in existence, and thereupon a policy was issued, and afterwards the property was destroyed by fire; if the objection be taken by the company that the description was false as to the kitchen building, the insured may show, by oral testimony, that the building was in contemplation at the time of the policy, and therefore included in it, the company being informed of the facts, and that it was afterwards erected, and may recover for the loss of it.

If, under such circumstances, it appear by the evidence that the additional building did not conform to the intention of the insured as communicated to the company’s agent at the time of the survey, the variation does not, of itself, vitiate the policy. It stands upon the principle of an alteration, and avoids the policy only in case the risk is thereby increased; a question of fact to be decided .by the jury.

The by-law of this company providing that, in case of any alteration, “application may be made” to have the premises examined to ascertain and certify whether the risk is increased or not, is a rule which may well be followed in order to save litigation; but such course is not a necessary element in the insured’s case. He may take the risk of that question before the jury.

This cause having been rightly tried on these principles, is free from error.

Judgment affirmed.