Viall v. Genesee Mutual Insurance

By the Court, Harris, J. The referee held that the defendants, when, with knowledge of the facts upon which they now rely as a defense, they collected and received the assessment upon the premium note, waived the forfeiture of the policy, if any had occurred, and affirmed the contract. In this view I concur. The premium note was a part of the contract. If by reason of the use which had been made of the building in which the insured property was situated, the policy had become void, the note also was void. The forfeiture, if any, occurred immediately after the insurance was effected. And yet, on the 1st of April following, and just before the loss, the defendants, by an unequivocal act, declared the contract to be then in existence. I am inclined to think they are estopped from going behind this act, to insist that the contract was then void, even though they might have been ignorant of the circumstances which would have enabled them to avoid it. They should be deemed to have elected, as they certainly might do, to consider it in force. But however this may be, there can be no doubt, I think, that after they had, with knowledge of the facts, received the assessment, and thus again declared themselves entitled to enforce performance of the contract, on the part of the plaintiff, they were not at liberty, when called upon by the plaintiff to perform on their part, to insist that the contract had become void immediately after it was made. They had long afterwards recognized its existence. They had shown themselves willing to receive [442] the advantages which it tendered to them. They had taken its fruits, and must not now be relieved from its obligations. (See Frost v. Saratoga Mutual Ins. Co., 5 Denio, 154.) Agreeing, as I do, with the referee in considering the forfeiture waived, if there ever was any, it becomes unnecessary to inquire whether the defendants ever were in a situation to declare the contract void. The judgment must be affirmed. [Albany General Term, February 6, 1854. Wright, Harris and Watson, Justices.]