Smith v. National Ben Franklin Fire Insurance

Brogden, J. The policy of insurance in controversy contained, in accordance with statutory requirement, tbe usual clauses rendering tbe policy void if tbe interest of tbe insured should be other than unconditional and sole ownership or of sale of tbe property by reason of any mortgage or deed of trust. In order to obviate tbe legal effect of these clauses tbe plaintiff relies upon tbe doctrine of waiver. This contention rests upon tbe fact that a short time prior to tbe fire, and long after tbe policy bad been issued, tbe plaintiff bad notified tbe agent of tbe defendant of tbe existence of tbe Parker mortgage and tbe advertisement of tbe property. In Hardin v. Insurance Co., 189 N. C., 423, Adams, J., states tbe rule of law applicable, as follows: “It has been held in a number of cases that in case of a breach of condition which invalidates tbe *448 policy, the company is not bound at its peril, upon notice of such breach, to declare the policy forfeited or to do or say anything to make the forfeiture effectual, and a waiver will not be inferred from mere silence or inaction on its part. It may wait until claim is made under the policy, and then rely on the forfeiture in denial thereof or in defense of a suit brought to enforce payment of it.”' The notice given by plaintiff to the agent was not at the time the policy was written and delivered, but long after it had been in force. The rule applying to such a state of facts is thus stated in Bullard v. Insurance Co., 189 N. C., 34: “The provision restricting the agent’s power to waive conditions does not, as a general rule, refer to or include conditions existing at the inception of the contract, but to those arising after the policy, is issued. Conditions which form a part of the contract of insurance at its inception may be waived by the agent of the insurer, although they are embraced in the policy when it is delivered; and the local agent’s knowledge of such conditions is deemed to be the knowledge of his principal.” Hayes v. Ins. Co., 132 N. C., 702; Weddington v. Ins. Co., 141 N. C., 234; Johnson v. Ins. Co., 172 N. C., 142; Ins. Co. v. Lumber Co., 186 N. C., 269. Applying the well established rules of law to the facts as disclosed by the record, we conclude that the judgment of nonsuit was correct. Affirmed.