Commercial Insurance v. Hallock

The opinion of the court was delivered by Elmer, J.

The action in this case was assumpsit upon a policy of insurance not sealed. No question, therefore, arises in regard to a formal delivery of the writing. The true question is, was the policy, under the circumstances set forth in' the special verdict, complete, so that the company had no right to caucel or withhold it upon receiving information that the property had been burned, or for any other reason, before it had been received by the assured. If the policy ever took effect, the plaintiff's right of action was complete.

It was insisted, for the plaintiff in error—first, that Breck, who received the premium, had no right to insure or to bind the company. But admitting this to be so, it appears that the proper officers accepted the terms proposed through him, and signed the policy on the 18th of March, and forwarded it by mail to him for the assured. It being well and satisfactorily established as law that the acceptance of a proposition, and the sending notice thereof by mail, complete the bargain, although the letter never reaches its destination, (1 Parsons on Con. 407,) it follows that the company w'as bound by what they did on that day, and had no power afterwards to revoke. The contract w>as complete when the proposition made on the one side was finally accepted on the other, of which the letter written by the secretary is the evidence. The mere execution of the policy would have been equally binding *647 ♦•without any such letter, had it been otherwise satisfactorily proved to have been meant to be complete. The writing would then have become the property of the assured ; and if withheld he might have maintained Isis action of trover-, or, as in this ease, assumpsit, upon proof of the contents. Angelí L. and Fins., § 31. There is nothing in the letter itself, or in any of the other facts found, tending to show that, when the policy was signed, and mailed to Breek, it was meant tobe subject to any future action on either side. It was as much the property of the assured, and the premium paid, the property of the company, before it was delivered as it would have been had the policy reached the hands of the person for whom it was designed.

The point most relied on for the plaintiffs in error was, that inasmuch as the property insured turned out to have been burned before the policy was executed, the company were not bound by their acceptance of the plaintiff’s offer, made in ignorance of that fact. Had they only undertaken to insure from and after the making of the policy, no action could have been maintained fora prior loss; but, upon referring to its terms, it appears that they expressly engaged to insure the premises from the 10th of March, which was before the fire-. It was like the insurance of a vessel lost or not, lost, This is not only the plain meaning of the writing, but it satisfactorily appears that both parties so intended. There is no allegation of fraud or concealment; and the company, having unequivocally agreed to take the risk of a fire having occurred subsequent to the time specified, and having received the premium lor so doing, cannot allege that they aeted under a mistake.

In my opinion the judgment must be affirmed.

For affy-mance—The Chancellor, and Judges Elmer, Haines, Cornelison, Swain, and Wood.

For reversal—Judge Valentine.

Cited in Water Com’rs Jersey City v. Brown, 3 Vr. 511 ; Potts v. Whitehead 5 C. E . Gr. 59.