State Fire & Marine Insurance v. Porter

The opinion of the court was delivered

by Bead, J.

The memorandum of the insurance and the receipt of the premium, both signed by the agent of the defendants, formed a contract of insurance between the parties. The contract would be assumed to be in conformity to the ordinary form of policy used in the office in Illinois, where the memorandum was made. If no policy was finally drawn out and' executed, a suit could be maintained on the memorandum, and a recovery had for a loss by the perils of the river, which are always insured against in river policies.

On the part of the plaintiff this course appears to have been pursued on the trial, without objection on the part of the defendants, and all the necessary proof of the loss by freezing up being made, and the preliminary proof put in evidence, with the abandonment, the plaintiff rested. It is clear that if no evidence had been produced by the defendants, the plaintiff had made out such a case that, if the jury believed the testimony, he was entitled to a verdict.

It was undoubtedly open to the defendants to have shown that the terms of their usual policy in Illinois did not cover such a risk or peril — but this was not attempted — which was completely in their power, and would have disposed of the whole question at once. It was also open to them to show that, by the uniform custom and usage in Illinois, such a peril or risk as freezing was not covered by the ordinary form of policy, but required an extra ice and fire risk, and an extra premium.

This course was not adopted, but parol evidence was offered to show that'an.agreement outside of the general contract was made,'that the insurance was not to extend to perils by ice, &c. This was rejected by the court, upon the ground that it would substantially vary a written instrument. Such, undoubtedly, is the law of Pennsylvania, and it also appears to be the law of Illinois, where the contract was to be executed, and where it had been made. Jeter v. Fellowes, 8 Casey, 465. It was, therefore, properly excluded, when offered for such a purpose. * .

Judgment affirmed.