Dwelling House Insurance v. Shaner

52 Ill. App. 326, 1893 Ill. App. LEXIS 179

• Court: Appellate Court of Illinois
• Decided: October 24, 1893
• Status: Published

Opinion

Mr. Justice Wall

delivered the opinion of the Court.

This judgment is upon a policy of insurance against fire.

It must be reversed, because, 1st, the suit was prematurely brought, the sixty days within which the company might make payment not having elapsed; 2d, because the property was mortgaged after the issuance of the policy, and contrary to the express provision thereof.

It is urged that when the application was written the agent of the company was informed that the mortgage would be made, and that he said this would make no difference, and that it would not affect the insurance.

Perhaps the policy should not have contained the clause in question, and for that reason it may be reformed by a bill in equity, upon which point we need express no opinion. But the clause being there, can not be disregarded because of a verbal understanding previous to or contemporary with the making of the written instrument. It is not the case of a waiver of a condition of a contract, already made, but it is rather an effort to change the terms of a written instrument by proof of a different verbal agreement prior to the ■writing.

This, upon well settled principles is not admissible, upon which authority need not be cited. As an instance of the application of the rule in cases of this character, reference may be had to Phœnix Ins. Co. v. Maxon, 42 App. 164.

The judgment will be reversed and the cause remanded.