Conover v. Mutual Insurance

3 Denio 254

Opinion

By the Court, Bronson, Oh. J.

The circuit judge had a discretion to disregard the variance as amendable; and for the exercise of that discretion a bill of exceptions will not lie. (2 R. S. 406, § 79; Mappa v. Pease, 15 Wend. 669; Mann v. Herkimer Mutual Ins. Co., 4 Hill, 187.)

(a)

There was sufficient evidence to carry the cause to the jury on the question of authority in the secretary to consent to the assignment of the policy. Although he had no written authority, he had often given consent in other cases; and the jury could not but have found, upon the evidence, that what he did had been approved by the company. And besides; it was enough that the secretary was a principal officer or agent of the company, and that he gave the consent on application for that purpose, at the place where the company transacted its business. His authority should be presumed until the contrary appears. (Bank of Vergennes v. Warren, 7 Hill, 91.) If the case of Dawes v. The North River Ins. Co., (7 Cowen, 462,) must be considered as laying down a different doctrine, we feel constrain ed to say that the decision cannot be supported.

The defendants insist that the mortgage to Gridley was an alienation of the insured property within the meaning of the seventh section of the charter of the company. (Statutes of 1836, p. 315, and 44.) But we think otherwise. The alienation spoken of in the statute is an absolute transfer of the title to the property. The mortgage only created a lien on the land for the security of a debt.

If the case had been within the seventh section of the charter, the action should have been brought in the name of Gridley. (Mann v. The Herkimer Ins. Co., 4 Hill, 187.) But as the case was not within that section, the action was necessarily brought in the name of Conover, though for the benefit of Gridley. (Jessel v. The Williamsburgh Ins. Co., 3 Hill, 88.) There was no error on the trial.

New trial denied.

■DECISIONS OF CASES ARGUED AT THE SPECIAL TEEM, IN SEPTEMBER, 1816.

See also Slocum v. Fairchild, in the court for the correction of errors, fl Hill, 292.1