Home Insurance v. Huguley

Jenkins, P. J. "To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which it can operate.” Civil Code (1910), § 4222. The minds of the parties must meet upon the terms of the agreement. Robinson v. Weller, 81 Ga. 704 (8 S. E. 447) ; Stix v. Roulston, 88 Ga. 743 (15 S. E. 826) ; Harris v. Amoskeag Lumber Co., 97 Ga. 465 (25 S. E. 519) ; Larned v. Wentworth, 114 Ga. 209 (39 S. E. 855). Thus, while actual delivery of the essential written contract of insurance is not necessary if in other respects such contract is consummated (Civil Code (1910), § 2470; see also Home Ins. Co. v. Freeman, 42 Ga. App. 481 (156 S. E. 461), still a written application for fire insurance delivered by the owner of property to an agent of an insurance company, who is without authority to enter into a contract of insurance on behalf of tire company, even though accompanied by a promissory note for the premium, amounts to nothing more than an offer to insure, and, until the minds of the parties have met by an acceptance on the part of the company of the offer to insure, and its actual issuance of a policy in writing, does not result in a binding contract. 32 C. J. 1102, § 187. In the instant suit on a premium note, the defendant pleaded that no policy of insurance had been issued to her, and that there had been no acceptance by the plaintiff insurance company of her application for fire insurance. The defendant testified positively that she had never received a policy, and had received no notice of any kind from the company of the acceptance of the application for insurance, or of the issuance of a policy on her application. Contrary to the evidence in the Freeman case, supra, there was no proof going to show the actual issuance and delivery, or issuance and notice of insurance of the policy, other than the testimony of the local soliciting agent as to what the company usually did in such matters, and he did not purport to have any recollection of the transaction in question, the sole effect and purport of his testimony being that usually when an application was forwarded the company saw proper to accept it and thereafter forward a policy to [599] liim as agent for delivery, and that on receipt of the policy for delivery it was his custom to deliver the same to the owner. Consequently, there was no evidence whatever to show a consummation’ of the particular contract, either by the issuance and actual delivery of the policy or by its issuance and notice to the defendant of the acceptance of her application, so as to give rise to a cause of action on the premium note. Accordingly, the verdict returned in favor of the defendant was demanded. Decided January 15, 1931. Rehearing denied February 28, 1931. Lawson E. Thompson, for plaintiff. Earle Norman, for defendant. Judgment affirmed. Stephens and Bell, JJ., concur.