Ferebee v. N. C. Mutual Home Insurance

68 N.C. 11

• Court: Supreme Court of North Carolina
• Decided: January 5, 1873
• Status: Published

Opinion

Settle, J.

We are of opinion, that the defendant had a (right to introduce parol evidence to explain the receipt produced by the plaintiff. But the charge of his Honor relieves us from all questions, as to the admissibility of testimony, for it says in effect, that the plaintiff is not entitled to recover upon the case which he has proven. So the action stands before us, as it would have done, had there been a demurrer to the evidence.

The plaintiff alleges in his complaint, that the defendant insured his property against fire, on the tenth day of January, 1870; that his property was destroyed by fire, on the eighteenth day of August, in the same year, and that he (the plaintiff) duly fulfilled all the conditions of said insurance on his part. Is this true ?

It is not pretended that the plaintiff paid his premium in cash, but he admits that he gave to the company what is known as a premium note, which fell due on the first day of April, 1870.

He alleges, and we are to take it as true, that there was a private understanding between Speed, the agent of the company, and himself, that Speed should pay this note to the company, in consideration of prior indebtedness from Speed to himself. But there is nothing to show, that Speed had authority from the company to make this arrangement, as to his private indebtedness, nor is there anything to show, that the company knew of this conduct on the part of their agent; and certainly it has done nothing to affirm his promise to the plaintiff, or to accept his liability for that of ¿he plaintiff.

The company incurred risk, and rested under liability to the plaintiff, from the tenth day of January to the first day of April, when his note fell due. And the liability of the company continued after that date, provided the plaintiff had paid the premium, at any time before the fire; but there is an express stipulation in the policy, which bars the right of the plaintiff to recover, inasmuch as the premium was unpaid and past due at the time of the loss. “ No insurance, whether original or continued, shall be considered as binding, until the actual payment of the cash premium. But -when, a note is given for cash premium, it shall be considered a payment, provided the notes are paid when due. And it is hereby expressly stipulated and agreed, by and between the parties, that in case of loss or damage by fire, to the property herein insured, and the note given for the cash premium, or any premium or any part thereof, shall remain unpaid and past due at the time of such loss or damage, this policy shall be void and of no effect.”

Here is an unmistakeahle condition, agreed upon by the parties to this policy; and the plaintiff tells us that he received three notices from the company, one before the ma turity of his note, and two afterwards, calling upon him to “ pay his premium and save his policy.” So he was not left in ignorance of the fact, that Speed had failed to comply with his private arrangement; on the contrary, the plaintiff had repeated notice, that his note was still unpaid and past due.

The plaintiff risked everything upon his private arrange-, ment with Speed, and paid no attention to the warnings of the company. This was his misfortune, and he is now left to his action against Speed for damages; but has no claim upon a company with which he contracted upon certain conditions, which conditions have never been fulfilled on his part, although he was repeatedly requested to do so.

But it was insisted upon the argument, that the defendants had waived their right to treat this policy as void, since they did not cancel, nor return the plaintiff’s note, after it fell due. Granting for the argument that there was a waiver of the stipulation that the note should be paid on the first day of April, it cannot be maintained that there was a waiver of the further stipulation, “ that in case of loss or damage by fire to the property herein insured, and the note given for the cash premium, or any premium or any part thereof, shall remain unpaid and past due at the time of such loss or damage, this policy shall be void and of m> effect.”

There was no error.

This will be certified, &c.

Per Curiam.

Judgment affirmed.