Gloucester Manufacturing Co. v. Howard Fire Insurance , 71 Mass. 497 ( 1855 )

Dewey, J.

This case presents the question of the agency of Gillett & Coggeshall under circumstances indicating a very general and extended agency as to issuing policies in behalf of the defendants. These agents were furnished with blank policies, which were to be filled up, indorsed and issued at their discretion.. It is fully conceded that, as to the rate of premium, the amount of the risk, and the nature of it, the power of these agents was unlimited. If the memorandum or indorsement of December 8th 1851 had been made by these agents upon this policy at the time of its original date, and before any other proceedings had taken place, we apprehend it would have been quite clear that it would have constituted a part of the policy, and properly be referred to as explanatory of the nature of the risk. It was not however indorsed on the policy at the time that the policy was countersigned by the agents, on the 14th of October 1851. The question then arises as to the power and authority of the agents to make this indorsement at the later period of December 8th 1851.

Had the plaintiffs received their policy on the 14th of October 1851, and paid the premium therefor, it might present a very different question from that now before us, which must be decided upon its own peculiar facts. Among these facts is the important one, that the policy had never been delivered, no premium paid by the plaintiffs, and nothing done which would have secured to the plaintiffs the benefits of the policy, had any loss by fire occurred to the property before the 8th of December. On the last named day, the plaintiffs, upon examination of the policy as originally prepared, refused to take it in the form in which it then was. At that time -no policy had been delivered. These agents were clothed with general powers, as to filling up and issuing policies. Having the authority to make an original contract of insurance, with terms similar to those found in this policy, they had authority,' before the delivery of the policy, to enlarge it from its first draft, by a change or modification of the description of the property insured, so as to embrace the case of a building unfinished, but then in the process of construction. This they did, and the policy in this form was accepted by the plaintiffs; and, as between insurers and assured, this contract was entered into on the 8th of December, and is to be treated as of that date.

If the agents of the defendants failed to transmit to their principals a copy of the written part of this policy, as it existed at the time of its delivery on the 8th of December, with the change in the description of the state and situation of the property insured, from that which they had forwarded to the defendants in the month of November previous, the responsibility for such omission is not upon the plaintiffs.

We are of opinion that this policy is to be taken to be a policy “ upon buildings in course of construction.”

The further inquiry then arises, as to the effect which this qualification of the original description of the risk is to have upon the stipulation as to “ water tanks well supplied with water at all times.” It is contended, on the part of the defendants, that this stipulation is equally operative, and requires a like literal compliance, if the policy be applied to buildings in the course of construction. But the court are of opinion that the insurance on the property having been modified, so as to be an insurance “ upon buildings in the course of construction ” at the time of issuing the policy, the statements in the application must be taken to be made with reference to such state of the buildings, and require a performance of the conditions or stipulations adapted to that state of things. The water tanks were to be supplied with all reasonable diligence, having reference to the progress in the construction of the building insured. The plaintiffs were not, under such a policy upon buildings in the course of construction, required to have at all times, from the first moment the policy issued, “ water tanks well supplied with water at all times,” in the manner, and to the extent, they would have been required to have had them, had the policy been upon a finished building.

Judgment on the verdict for the plaintiffs.