Leathers v. Farmers' Mutual Fire Insurance

24 N.H. 259

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Perley, J.

*

There is no doubt that the plaintiff had an insurable interest; and a mere misrepresentation as to the title would not, on general principles, avoid the policy, unless material to the risk. But the question in this case is whether, by the provisions of the act incorporating the defendants, they can avoid this policy.

The case does not find that the defendants had any notice of the plaintiff’s title, other than that contained in his written application, and in that he describes himself as the owner. The defendants, therefore, by receiving assessments cannot be held to have waived an objection of which they had no knowledge. Neally v. Insurance Co., 7 Hill 49. The application was made part of the policy; the act of incorporation was also annexed to the policy; and the undertaking of the defendants was to pay according to the provisions of the act. The defendants, being a corporation, have no general power to contract, like a natural person; their powers and their liabilities depend wholly on the law which created them.

By the act of incorporation, if the assured have a less estate in the buildings insured than a fee simple, the policy may be void, unless the true title of the assured be expressed therein. In this case the plaintiff had a less estate than a fee simple, to wit: an estate for his own life only by the courtesy, and his true title was not expressed in the policy. The case falls, therefore, plainly and unequivocally within this provision of the charter; and unless the defendants may protect themselves under it in this instance, it is difficult to conceive one in which this provision can have any operation.

The policy of the law is to give contracts of this kind effect according to the fair intention of the parties, without regard to objections of mere form; but the court cannot undertake, by an evasive construction, to defeat the clear intention of the legislature, plainly expressed in the act of incorporation. The defendants have agreed to be liable according to that act, and by the provisions of that act the plaintiff is not entitled to recover. Holmes v. Insurance Co., 10 Met. 214; Tittemore v. Insurance Co., 20 Vermont 546; Jennings v. Insurance Co., 2 Denio 75.

It is observable that the charter does not declare the policy to be absolutely void, in case a lesser title than a fee simple is not truly described in it. It might perhaps be held that under this provision the corporation had an election, to avoid the policy or treat it as valid. If so, it may be that the corporation, on discovering the defect in the description, ought to make their election. to avoid the policy within reasonable time, and after receiving notice of the true title of the assured, they might, by receiving assessments, be held to have affirmed the policy and waived their right to object. That question, however, does not arise in this case, as the defendants had no notice.

Judgment on the verdict.

Eastman, J., did not sit.