Smith v. Empire Insurance

By the Court, Balcom, J. It was understood between Van Camp and the plaintiff from whom he received the application for the policy in question, that it was not completed when he took it, and that he was to “ fill out the rest of it when he got where he could write.” This understanding constituted Van Camp the plaintiffs’ agent to complete the application; and although nothing passed between him and the plaintiff with whom he did the business, in regard to incumbrances on the property to be insured, the plaintiffs are responsible for all that he afterwards inserted in the application to make it complete, including the words, “there is no incumbrance except the Petrie mortgage.” Van Camp must have understood, from what was said when he took the application for the policy, that he was to insert in it whatever he should deem proper to make it perfect, “w'hen he got where he could write,” or he would not have inserted the sentence in it as to incumbrances. The plaintiffs must suffer for this act of Van Camp, on the principle that where one of two innocent parties must suffer from the improper act of a third, the one shall suffer who has enabled such third person to do the act. (6 Wend. 620. 13 id. 572. 23 id. 268. 1 Hill, 307. 2 id. 465. 7 Paige, 69.) The plaintiffs, by permitting Van Camp to complete the application in their absence, enabled him to insert the false statement in it, that there was no incumbrance on the prop [503] erty to be insured, except the Petrie mortgage; and they must suffer the consequences of that act. The application was made a part of the policy, by an express reference therein to it, as forming a part of it. The conditions annexed to the policy also formed a part of it by an equally express reference therein to them. One of the^conditions required the plaintiffs to state, in their application, “ the nature and amount of incumbrances, if any,” on the property to be insured; and it declared that “ any misstatement or concealment relative” to the same should “render the insurance void, the validity of the policy being based thereon.” Another condition was, that there should be no waiver or evasion of any of the printed terms and conditions of the policy. When the policy was issued there were tAvo mortgages on the real estate upon which the property insured Avas situated : one that was executed by J. W. Petrie to the Utica Savings Bank, on which $1000 remained unpaid ; and one that the plaintiffs gave to Blihu Bing, on Avhich $4000 remained unpaid. As there Avas such an incumbrance on the premises as the one mentioned in the application for the policy, the application must be construed to refer to that, although it was only a nominal lien on the premises, and though it might perhaps be regarded as no lien at all, if it bad not been mentioned. The statement in the application, that there was “ no incumbrance except the Petrie mortgage,” Avas an express Avarranty by the plaintiffs against other incumbrances, and the Avarranty Avas broken by reason of the existence of the mortgage upon the premises which the plaintiffs gave to Bing; and such breach of the Avarranty rendered the policy void. It has been held that the stipulations in the application amount to an express warranty where the application ■ is referred to in the policy for a more particular description of the property insured, and as forming a part of the policy. (Egan v. The Mu. Ins. Co. of the City and Co. of Albany, 5 Denio, 326. Murdock v. Chenango Co. Mu. Ins. Co., 2 Comst. 210. Wilson v. Herkimer Co. Mu. Ins. Co., 2 Selden, 53. Jennings v. Chenango Co. Mu. Ins. Co., 2 Denio, 75. 3 Hill, 501. Duncan v. Sun Fire Ins. [504] Co., 6 Wend. 488. Sexton v. Montgomery Ins. Co., 9 Barb. 191. Kennedy v. St. Lawrence Co. Mu. Ins. Co., 10 id. 285. Westfall v. Hudson River F. Ins. Co., 2 Kern. 289. Mead v. N. Western Ins. Co., 3 Selden, 530. Wall v. East River Mu. Ins. Co., Id. 370. Burritt v. Saratoga Mu. F. Ins. Co., 5 Hill, 188. 2 Comst. 43. Trench v. Chenango Co. Mu. Ins. Co., 7 Hill, 122.) The case of the Farmers’ Ins. and Loan Co. v. Snyder, (16 Wend. 481,) does not show that the statement in the plaintiffs’ application, as to incumbrances, was a . mere representation, and if it did the authorities above cited show that it could not be followed. [Tompkins General Term, October 20, 1857. Another question is presented by the bill of exceptions, and that1 is, although the policy was void as to the insurance on the house, was' it good as to the insurance on the furniture that was in the house ? There was no incumbrance on the furniture. If the case of Trench v. The Chenango Co. Mu. Ins. Co., (7 Hill, 122,) is good law, the plaintiffs were entitled to recover for the furniture that was burned in the house. But that case has been shaken too much by the court of appeals, in Wilson v. The Herkimer Co. Mu. Ins. Co., (2 Selden, 53,) to be followed; and the case of Brown v. The People’s Mu. Ins. Co., (11 Cushing, 280,) is in conflict with it. The weight of authority is that the policy in question was invalid as to the personal as well as the real estate, and we must hold that.the entire policy was void. The plaintiffs’ motion for a new trial must be denied, with costs. Decision accordingly. Gray, Mason and Bdlcom, Justices.]