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THE

244

INSURANCE

LAW JOURNAL.

VOLUME XII.

NEW YORK:
PUBLISHED BY C. C. HINE

161 BROADWAY.

1883.

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IN INSURANCE CASES, RENDERED IN THE UNITED STATES SUPREME AND CIRCUIT COURTS, AND IN THE STATE

SUPREME COURTS.

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APPLICATION.

§ 1. FIRE. When Filled by Agent.-Breach of Warranty.Where the agent of an insurance company examines and inspects a building upon which the owner desires to effect a policy of insurance, and afterwards fills up an application, which he reads to the owner, and which is signed by him, such agent is to be regarded with respect to such application as the agent of the owner, and not of the company, and hence the company will not be estopped from setting up the falsehood of statements in the application as to the condition and use of the premises, as a defense to an action on a policy of insurance issued by it in pursuance of such application.

Eilenberger vs. Protective Mutual Fire Ins. Co., 8 Norris, 464, distinguished.

In an application for a policy of insurance on a certain build

ing, the same was described as a dwelling-house occupied by the applicant. It was as a matter of fact an unfinished building which never was occupied by the applicant or anyone else. By the terms of the policy issued in pursuance of such application, the application was made part of said policy, and all statements contained therein were warranted to be true. A loss having occurred under the policy, and suit having been brought thereon, Held, that the plaintiff had been guilty of a breach of warranty which precluded his right of recovery.

Greenfield's Estate, 2 Harris, 504; Pottsville Mutual F. Ins. Co. vs. Horan, 12 Pitts. Leg. J., 24.

Pottsville Mut. Fire Ins. Co. vs. Fromm.

Rep'd Jour', p. 21.

PA. S. C.

DESCRIPTION.

§ 2. FIRE.-Occupancy as a Schoolhouse Avoids Policy on Dwelling.-Con truction of Statute as to Town Insurance Companies. -Under section 10, c. 103, Laws 1872, and section 1931, Rev. St. of Wisconsin, prohibiting town insurance companies from insuring schoolhouses, without a majority vote of the members, a policy of insurance upon a schoolhouse issued without such vote is ultra vires and void; and a policy so issued upon a dwelling-house becomes void, if, afterwards, the dwelling-house is converted into a schoolhouse. The doctrine of consent of waiver does not apply to such a case. The term "schoolhouse," in the statute above cited, was used in its generally accepted meaning as a "house or building in which a school is kept," and is not restricted in its application to a district schoolhouse. The evidence in this case (for which see the opinion) shows that the building upon which the policy of insurance in suit was issued, was, at the time of the loss, a schoolhouse within the prohibition of the statute.

Janesville Bridge Co. vs. Stoughton, 1 Pin., 667; Madison etc. Plankroad Co. vs. Watertown, etc., 7 Wis., 59; Rock River Bank vs. Sherwood, 10 Wis., 230; Clark vs. Farrington, 11 Wis., 306; N. W. Union Packet Co. vs. Shaw, 37 Wis., 655.

Luthe vs. Farmers' Mul. F. Ins. Co.

Rep'd Jour'l, p. 30.

WIS. S. C.

FORFEITURE.

83. LIFE.-Rights of Beneficiaries Under a Wife's Policy. -Insurable Interest.-Effect of War.-Right of Action.-Waiver of Premium.-Measure of Damages and Value of Policy in Case of Repudiation.-The policy on the life of M. was payable to his wife, or, in case of her prior decease, to her children. Prior to her death, and during the life of the policy, the company repudiated its obligation. Held, that the interest of the children was independent of the mother, and became vested immediately on her death so that they could maintain an action in their own name. Held, that the beneficiaries had an insurable interest.

Phoenix Mut. Life Ins. Co. vs. Bailey, 13 Wall., 616, 619; Bliss on Life Insurance (second edition), Chap. 2.

Held, that war did not abrogate, but only suspended the contract.

Manhattan Life Ins. Co. vs. Warwick, 20 Gratt, 614; Mutual Benefit Life Ins. Co. vs. Atwood's Adm'x, 24 Gratt., 497; New York Life Ins. Co. vs. Hendren, id., 536.

Held, that after repudiation the beneficiary might elect either to sue at once for breach of contract or await the maturity of the policy and sue for its fulfillment. No further tender of premium was needed. When the death occurred subsequent to the commencement of an action for breach of contract, the fact of such death may be considered in fixing the amount of damages. The value of the policy is the present value as at the date of repudiation, less the value at date of unpaid premiums and interest.

Universal Life Ins. Co. vs. Binford, Va. S. C. A.; People vs. Security Life Ins. & An, Co., 78 N. Y., 114.

Clemmitt vs. N. Y. Life Ins. Co.

Rep'd Jour❜l, p. 60.

VA. S. C A.

INSOLVENCY.

$4.

LIFE-Allowance to Interveners.-Practice.-Power of General Term of Supreme Court.-The lower court at Special Term, had granted an order of reference to take proofs and recommend whether any, and if so, what allowance should be made

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