Fabyan v. Union Mutual Fire Insurance , 33 N.H. 203 ( 1856 )

Sawyer, J.

The contract of insurance upon which the plaintiff seeks to recover is in writing, as contained in the policy of insurance, and the defendants are to be held liable upon the contract only in accordance with the terms and stipulations therein expressed, as the conditions and limitations of their liability. By express reference in the policy to the provisions of the act of incorporation and by-laws of the company, those provisions are incorporated into the contract, and thus made essential parts of it. Among the provisions thus embraced are those contained in the 16th section of the act, and the 19th article of the bylaws; and the contract is to be construed in the same manner as if those provisions were inserted, in totidem verbis, as conditions and limitations of the defendants’ liability under it.

The agreement between the parties thus being reduced to writing, effect and operation are to be given to it as in other cases of written contracts^ according to the obvious meaning of its terms. No other interpretation can be given to those provisions, thus considered as conditions of the contract, than that the defendants are not to be liable upon the policy in the cases specified in the 16th section of the act and the 19th article of the by-laws, unless such proceedings are had as are therein specified. This is the agreement into which the parties have entered, and which they have reduced to writing. The defendants stipulated for such a qualified or contingent liability, and the plaintiff accepted the policy upon that understanding. It must be presumed, in the absence of any evidence of fraud, that the plaintiff was informed of all the provisions of the act and bylaws, qualifying or limiting the liability of the defendants.

A double insurance was obtained by the plaintiff in the Atlantic Company, of which no notice was given to the defendants, and to which their assent was not given, as required by the 16th section of the act. By the terms of the policy, this discharged the defendants from liability, — their promise contained in the policy to pay to the plaintiff, in case of loss, being upon the condition that in case of such double insurance their assent thereto should be endorsed on the policy. It is contended, however, by the plaintiff, that the defendants should be estopped from setting up this provision of the act as a condition or limitation of their liability under the contract, because of the proceeding of the company in causing what purports to be them act of incorporation to be printed upon the back of the policy, and which, in fact, does not contain the 16th section. This proceeding, it is said, was of a character to mislead and deceive the plaintiff; and it is contended that he, finding upon the back of the policy what the company have thus held out to him as their act of incorporation, containing no such provision, may be supposed to have accepted the policy upon the understanding that it was what they held it out to be, and that they are not at liberty to claim that such provision is contained in the act constituting a limitation upon their liability. An examination of the matter printed upon the back of the policy shows conclusively that it is not claimed to be the entire act, and that with the ordinary degree of attention, it could not have been so understood by the plaintiff.

Two sections of the act only are printed — the first and the last — and designated respectively, as printed, section 1 and section 20 ; the former containing the names of the grantees, the incorporating clause, and a summary of the purposes and objects of the corporation, usually contained in the first section of such an act; the latter merely specifying the time when the act is to take effect. In the first section it is declared that the grantees named, and such other persons as may hereafter become members of the company, in the. manner hereinafter prescribed, are incorporated and made a body politic, no provision being contained in either section, as printed, prescribing the manner in which other persons may become members. The slightest attention would show that the whole act was not contained in these two sections ; that, in fact, the eighteen intermediate sections were omitted; and the printing of these two upon the policy, with the other eighteen thus shown to be omitted, would furnish no evidence to the jury that the printed matter contained the whole act, or that the plaintiff, with ordinary care and attention, could have been misled by it.

Upon the other ground, also, the defendants were released from liability upon the policy.

The setting up of seven stoves in the hotel in which the property insured was kept and used, was such a change of circumstances as that the jury might have found that the risk was thereby increased. It was understood by the plaintiff himself to be increased thereby to some extent. This is implied in the statement contained in his letter of the 8th of February, that it is not “ much increased.” Under the provisions of the 19th article of the by-laws, such a change avoided the policy, unless an additional premium and deposit was agreed upon. Upon being notified of this change the company declined to continue tbe insurance, and refused to arrange an additional deposit and premium, and immediately notified the plaintiff of their determination.

By the terms of the contract they had the right thus to terminate it, and as by the provisions of the case a verdict is to be entered for the defendants, if the evidence would warrant it, the verdict must be set aside and a

Verdict entered for the defendants, and judgment rendered thereon.