Roby v. American Central Insurance

Vann, J. The policy in question provided that if the risk should be increased by any cause known to the insured, unless notice thereof should be given to the defendant and its consent indorsed upon the policy, or if there should be any change of title to the property insured without such consent, the jmlicy should thereupon cease to be binding upon the company. It further provided that the working of carpenters, plumbers or other mechanics in building, altering or repairing the property, building or premises named in the policy, should avoid the same, unless permission for such work were given in the usual way. Whether there was an increase of risk within the meaning of the policy was a question of fact that was duly submitted *515 to the jury. They are presumed to have found against the defendant upon that issue, and as their conclusion is supported by sufficient evidence, it cannot be reviewed here. (Hynes v. McDermott, 91 N. Y. 451, 464.) We think that there was no change of title to the properly insured, because the mere dissolution of a firm does not destroy the joint interest of the copartners in the partnership property, nor make them tenants in common. (Murray v. Mumford, 6 Cow, 441; Tarbell v. West, 86 N. Y. 280, 290; King v. Leighton, 100 id. 386, 392 ; Dresser v. United Fireman's Ins. Co., 45 Hun, 298; Story on Part. § 325; Lindley on Part. [5th ed.] 218.) The copartnership continued, in a limited sense, with reference to past transactions and existing assets. While the power previously possessed by each partner to bind the other was determined, that which was partnership property before the dissolution, continued to be such afterward, until one of the copartners sold his interest to the other. The motion to nonsuit was based upon many grounds, some of which are too general to require attention, and none of which need further notice, except the following: “ 6. That the proofs of loss furnished the defendant show upon their face that the fire originated through friction in the exhaust fan, which the proofs on the trial show was qmt into the building -where the property insured was located after the policy was issued, and without the consent of the defendant, as provided by the policy.” The defendant excepted to the denial of said motion, and also to the instruction of the court to the jury “ that if the company, after it had notice of the repairs or alterations upon which it now relies to defeat the policy, requires, by virtue of the policy, any action on the part of the plaintiff by which he was subjected to inconvenience or expense, it has waived this forfeiture.” The plaintiff stated in the proofs of loss “ that the fire originated through friction in the exhaust fan, as deponent verily believes.” The exhaust fan consisted of a circular iron case, *516 about four feet in diameter, with a wheel within, described as a paddle wheel, with broad blades. This wheel, by rapid revolution, created a powerful current of air that carried away the shavings. The evidence showed that such machines are largely used for that object; that they are introduced for “ the very purpose of their safety,” and that while they are liable to friction, as all machinery is, “ as a whole they decrease the risk.” Defendant’s agent, whose authority is not questioned, testified that he visited .the building in which the risk was located at the time that he issued the policy; that he knew what the property insured generally consisted of and what the business of the firm was; that the next day after the fire he examined the premises and found that this exhaust fan had been put in and, through the conversation of other agents, learned about the alterations, improvements and changes that had been made. The proofs of loss were received' January 29, 1883, and on the third of February, the defendant, through its general adjuster, notified the insured, in writing, that such proofs were unsatisfactory, because they were not properly signed and sworn to ; that they were signed “ William Corns & Co., composed of Sidney B. Roby,” and that “William Oorris & Co., collectively, are incompetent to make an oath testifying to the correctness of the statements in the pretended proofs; some one or more of the individual members of such firm must sign his or their individual names as of and for the said firm, and testify and each for himself sign and testify under oath to the correctness of such statement; ” that the signature of the notary was not authenticated by a seal, and that the ju/rat was defective in form. The notice further stated as follows: “Proofs of loss in due form covering the. objections and requirements hereinbefore mentioned and referred to, and conforming to the requirements of the printed condition of said policy * * * should be made under said policy and * * * are required of you.” Full information under oath was also required as to who composed the firm of William Oorris & Co., and as to each and every transfer or change of *517 title to the property mentioned in the policy. Ho information was required upon any other subject, and no intimation was given that the company intended to rely upon the forfeiture clauses, or that it claimed that the policy was void for any reason. Upon the receipt of this notice, the insured employed counsel to advise what it was necessary to do, and on March 3,1883, prepared and served a supplementary affidavit, substantially covering the points as to "which further information was required by the company. The policy contained explicit provisions in regard to the proofs of loss to be furnished by the insured, and required that they should be “ signed by his own hand ” and accompanied by “ his oath or affirmation.” They were to contain information upon many points, and, among others, as to who was the owner of all the property insured. Thus it appears that after the fire and after the defendant knew of the facts involving the forfeiture now insisted upon, it recognized the validity of the policy and subjected the insured to trouble and expense by requiring them to furnish information pursuant to its provisions. Hence this case is brought within the principle laid down in Titus v. G. F. Ins. Co. (81 N. Y. 410). The court in deciding that case said: “ It may be asserted broadly that if in any negotiations or transactions with the insured, after knowledge of the forfeiture, it (the company) recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act, or incur some trouble oi expense, the forfeiture is as matter of law waived, and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or estoppel.” Among many cases cited in support of this proposition are Goodwin v. M. M. L. Ins. Co. (73 N. Y. 480,493), Prentice v. K. I. Ins. Co. (77 id. 483), and Brink v. H. F. Ins. Co. (80 id. 108). The principle is recognized in Robertson v. M. L. Ins. Co. (88 id. 541, 545), but was not applied, as in that case, as well as in Weed v. L. & L. F. Ins. Co. (116 id. 106, 118), the company did not know of the facts relied *518 upon to work a forfeiture when its action, that was claimed to constitute a waiver, was taken. The policy in question was void or valid as a whole. If any part was valid, it was all valid. The defendant could not enforce any part without practically admitting that it was operative in all its parts. By demanding further proofs of loss, in fact and in form it demanded that which it had contracted for and thus attempted to enforce the contract in part. The insured complied with the demand and was thereby put to expense and inconvenience, and thus the defendant succeeded in enforcing the contract in part. It then knew, or is presumed from the evidence and the verdict of the jury to have known, that the exhaust fan had been put in by the insured after the date of the policy. (Hyatt v. Clark, 118 N. Y. 563, 569.) Knowing that it could insist upon a forfeiture on this ground and without attempting to reserve any right, it called on the insured to perform their part of the contract and thus put itself in the position of deliberately asserting its validity, and of insisting that it should be carried into effect. When, in turn, it was called upon to perform its own part thereof, it could not recede from that position. It could not enforce the contract as valid in so far as it was favorable, and resist it as void in so far as it was unfavorable. After requiring performance from the insured with knowledge of the facts, it could not refuse performance on the ground that those facts had worked a forfeiture. We think, therefore, that the learned trial judge correctly announced and applied the law when he instructed the jury that if they found the facts in accordance with the theory of the plaiirtiff, the defendant had waived its right to insist upon a forfeiture. As we find no exception that requires a new trial, we think that the judgment should be affirmed, with costs. All concur, except Bbadley and Haight, JJ., not sitting. Judgment affirmed.