St. Paul Fire & Marine Insurance v. Parsons

DICKINSON, J.

In February, 1886, the plaintiff insured one Caine against loss by fire of his dwelling-house. The policy contained the provision that it should be void if the property should be sold under *354 foreclosure of a mortgage or any other lien, or by voluntary transfer or conveyance, unless such transfer or change of title should be indorsed on the policy, or if the assured should sell or transfer the property without the consent of the company indorsed on the policy. In June, 1887, the premises were sold in proceedings for the foreclosure of a mortgage thereon, the mortgagee (a corporation) becoming the purchaser, and afterwards assigning its interest to the defendant. In November, 1887, the insured, Caine, sold and conveyed- the premises to the defendant. No indorsements were made on the policy concerning these transactions. The question presented on this appeal is •whether the policy was avoided; or, more particularly, whether the •company, by its agent, one Peterson, in effect waived the condition -that the policy should be void in the events specified.

The policy was issued by Sawbridge & Lake, agents of the plaintiff •at Fergus Falls. Subsequently Peterson was appointed the plaintiff’s agent at Barnesville, with express authority to receive proposals for insurance in and in the vicinity of Barnesville, to fix rates of premium, receive the same, countersign, issue, renew, and consent to the transfer of policies, to make indorsements on the same, or to vary the risk. The insured premises were nearer to Barnesville than to Fergus Falls. Peterson was a practising attorney-at-law, and, acting in that capacity in behalf of the defendant, he procured the conveyance from Caine to the defendant, he drawing the deed of conveyance. In the course of his employment as such attorney, but not in his employment as the plaintiffs agent, as is found by the court, Peterson became informed of and knew “that the plaintiff had issued the policy in question to Caine, as stated in the pleadings.” He was also informed of the mortgage foreclosure and of the assignment by the purchaser to the defendant. After he had been thus informed and had thus acted, and in October, 1888, as is found by the court, the defendant, by her agent, called upon Peterson as agent of the plaintiff, and requested him as such agent to take such steps as would secure the defendant the “transfer of the policy of insurance” previously issued to- Caine; and Peterson then informed her that the policy was good as to defendant as it then stood, and that nothing was necessary to be done to. make it good to her. As a conclusion *355 of law the court found that “notice to Peterson of the transfer of title and foreclosure was notice to the plaintiff, and the plaintiff is held to have waived the breaches of the policy by the statements of Peterson to the defendant’s agent, as before set forth.”

The facts found by the court did not justify this conclusion. It cannot be declared as a legal proposition that when the defendant applied to Peterson, as the agent of the plaintiff, to act in respect to the insurance, the corporation was chargeable with notice of the facts which by the terms of the policy would render it void, merely because the agent had previously acquired knowledge of such facts in the course of an employment in no way relating to the agency, and with which the principal was not connected. Trentor v. Pothen, 46 Minn. 298 , ( 49 N. W. Rep. 129 ;) notes to Le Neve v. Le Neve, 2 Lead. Cas. Eq. 109. Though it be conceded that the nature and the language of the defendant’s request to the agent of the company were such as necessarily to bring to his mind, or to impart notice, that the property had been sold, it is not found that he was informed that this had been done without the consent of the company; nor can the request be regarded as necessarily notifying him that such was the case. This was an essential fact, as respects the legal effect to be ascribed to the answer made by the agent to such request. The defendant, in order to avoid the forfeiture which had been suffered under the conditions of the policy above referred to, relies upon this answer or statement of the agent as constituting a waiver, — a consent that the policy remain in force notwithstanding the fact that the property had been sold without the consent of the company. It cannot be said from the facts found that the agent intended to waive the forfeiture, or that the company is estopped to dispute that it was waived. It is not to be presumed that he intended to waive a forfeiture concerning the very existence or occurrence of which he was ignorant; nor, in general, where the facts do not constitute an estop-pel, should one who neither knows the fact of the forfeiture nor is chargeable with fault in not knowing it be held to have waived the same by acts or conduct not intended to have such an effect. See Robertson v. Metropolitan Life Ins. Co., 88 N. Y. 541 ; Weed v. London & Lancashire Fire Ins. Co., 116 N. Y. 106, 118 , (22 N. E. Rep. 229.) *356 For aught that appears, the answer of the agent to the defendant’s request may have been based on the assumption that the company had consented to what had been done. Before the defendant can claim that the statement of the agent constituted a waiver of the forfeiture, not having been so intended, or that the principal is estopped to deny the waiver, it must appear that the agent knew or was notified of the fact. What the agent said in response td the application of the defendant was in form the statement of his opinion as to existing rights, rather than a declaration that the policy should remain in force notwithstanding the fact that by the occurrence of the specified events and by the conditions of the policy it had already ceased to be valid. The defendant had no right to rely on such a statement as constituting a waiver, without seeing to it that the agent was notified of the facts which he could not be presumed to know, affecting the rights claimed to have been thus waived. The findings do not justify the conclusion, and there must be a new trial.

Concerning another question here presented, and which may again arise, we' will add that by virtue of the general authority expressly conferred upon Peterson as the plaintiff’s agent at Barnesville and vicinity, he was empowered to act in respect to this insurance as fully as he might have done if the policy had been issued by him. The authority expressly conferred in terms selected by the principal is not to be narrowly construed. He had power to bind the company by consenting that the policy remain in force notwithstanding the transfer of title and the sale on mortgage foreclosure; and notwithstanding the condition of the contract that such consent should be indorsed on the policy, it might be given otherwise. The company could not, by such a provision in its policy, divest itself of the power to afterwards enter into further agreements or stipulations, through its proper agents, concerning the risk. Our decision in Lamberton v. Connecticut Fire Ins. Co., 39 Minn. 129 , ( 39 N. W. Rep. 76 ,) fully covers this point.

Order reversed.