Gilbert v. Phœnix Insurance

By the Court, Johnson, J. It was expressly stipulated in the body of the policy, that the insurance should be void in case the assured, or any other person with his knowledge, should have existing, during the continuance of the policy, any other insurance on the property, not notified to the defendant, and mentioned in or indorsed upon this policy. This was a material part of the contract between the parties. The fifth condition, which is also a part of the contract, provides that notices of all previous insurances upon property insured by the defendant shall be given to it and indorsed upon the policy, or otherwise acknowledged in writing, at or before the time of making the insurance; otherwise the policy subscribed by the company shall be void. In reference to subsequent insurances, the same condition provides that notice thereof must with all reasonable diligence be [375] given to the company, to the end that they may he indorsed on the policy, or otherwise acknowledged in writing by it, and that in default thereof the policy shall thenceforth cease and be of no effect. It appears from the evidence, and was admitted by the plaintiff’s counsel upon the argument, that in addition to the policy in question, the assured effected an insurance upon the same property, in two other companies, to the amount of three thousand dollars, and received policies of $1500 from each, neither of which was notified to the defendant, nor mentioned in nor indorsed upon the policy in question, nor otherwise acknowledged by the defendant in writing. The parties have stipulated that this omission should render this policy void and of no effect, and I can see no way of avoiding such a result, if the defendant chooses to insist upon these provisions. They were obviously inserted for its benefit, and for a substantial purpose, and the assured having entered into the agreement, is not now nor is his assignee at liberty to say they shall not be available, if a breach is clearly established on his part. The policies all took effect on the first of January, 1858.-The policy in question had been applied for, and the application was pending, when the assured made- arrangements with the two other companies, in pursuance of which policies were issued and forwarded to him by mail. It does not appear which policy was first received and accepted by the assured. It is insisted by the plaintiff’s counsel that the insurances effected in the two other companies were neither previous nor subsequent insurances to the policy in question, but contemporaneous with it, and therefore do not fall within the terms or scope of this policy. But it will be seen that the policy in question provides not only against insurances effected prior, and subsequent, to that in question, but also to those existing during the continuance of the policy in question, embracing every possible case of an insurance, whenever or however effected, which should have an existence, as such, within the period covered by this policy. There is some evi [376] dence tending to prove that the agent or person through whom the application for the insurance in question was made, to the defendant’s agent, and through whom the assured received this policy, had verbal notice that the assured had made arrangements for one or both the other policies, before the one in question was issued. It does not appear, however, that this person had any authority to'act for the defendant in any way, to affect or vary the written agreement. But if he had been the regularly constituted agent, with authority to receive applications" and issue policies, and had issued the policy in ■question, after the verbal notice shown by the ■ evidence, it could not affect the question of a breach, by reason of not having such insurances mentioned in, or indorsed upon, the policy, or'otherwise acknowledged in writing. The parties had clearly the right to stipulate between themselves, as to the nature and' kind of evidence by which their assent to other insurances should be manifested. And where they have thus stipulated, the court has no power to substitute any other evidence, differing in kind or degree. Tó do this would be to make a new contract, which peradventure the parties themselves would never have made. The court is to enforce contracts which the parties have made, but has no' power to make new contracts for them, or to alter or vary in any essential particular those they have mutually agreed to be bound by. That this matter, of the kind and degree of evidence by which the assent of the insurers to other insurances upon the same property shall be established, is no mere matter of form or ceremony, but of vital importance, will be readily conceded by every one who has been much in the practice of determining disputed questions of fact upon conflicting testimony. The uncertainty of even the most tenacious memory, the liability to misunderstand and the difficulty of reporting accurately, after a lapse of time, a mere verbal communication, are matters of every day’s observation', and it is not at all surprising that parties should pro [377] vide for more certain and reliable evidence of important and controlling facts in their contracts. [Monroe General Teem, March 3, 1862. Johnson, Smith and Welles, Justices.] That such an agreement is valid, and the policy rendered void, by failing to have other insurances mentioned in, or indorsed upon, the policy, or acknowledged in writing according to the terms of the contract, is now, I think, well settled by authority. (Bigler v. The New York Central Ins. Co., 22 N. Y. Rep. 402. Jube v. The Brooklyn Fire Ins. Co., 28 Barb. 412. Basset v. The Union Mutual Fire Ins. Co., 7 Cush. 175. Forbes v. The Agawam Mutual Fire Ins. Co., 9 id. 470. Worcester Bank v. Hartford Fire Ins. Co., 11 id. 265. Hale v. Mechanics’ Mutual Fire Ins. Co., 6 Gray, 169. Carter v. The Providence Washington Ins. Co., 16 Peters, 495.) On this ground, alone, the defendant is clearly entitled to judgment, for its costs of the action. Ordered accordingly.