Kehler v. New Orleans Ins.

23 F. 709, 1885 U.S. App. LEXIS 1978

Opinion

Treat, J., (orally.)

In the case of Kehler v. New Orleans Ins. Co. there is a motion to set aside verdict and judgment. The original defense to the case was that, under the terms of the policy, it could be canceled on notice given, and that said notice was given before the loss. On the testimony submitted, it appeared the notice was not given. I supposed the contention would be that the broker who negotiated the insurance must be treated as if he were the plaintiff himself, or his agent for receiving notice. He is not so. That question was before the supreme court and decided in the case of Grace v. Insurance Co. 109 U. S. 278 ; S. C. 3 Sup. Ct. Rep. 207. His functions terminated when he effected the policy.

Now, this motion goes a step further. It sets up in the affidavit an entirely new defense, which, it seems, was not thought of before, to-wit, that 'the policy executed and delivered to the plaintiff was only on condition that the parent company should assent thereto, which it never did. That is something.that was not in the original pleadings. The party had abundant opportunity to do that originally. Now he wishes to set up a new defense, and reopen the case upon a theory which is utterly inconsistent with his own correspondence on file.

The motion will be overruled.