Home Insurance v. Adler

STONE, C. J. The testimony in this case reasonably establishes the following propositions of fact: That ICayser was the agent of the appellant corporation, authorized to contract for it, and to assume fire risks in its name; that he and Adler conferred together, and agreed, the latter to take out, and the former to issue a policy of insurance, without pre-payment of premium, and without further negotiation, the one with the other; that the rate of premium, duration of the policy, location of the subject of the insurance, nature of the risk, and'substantial details of the policy, were all mutually understood between them ; and that they separated with this mutual understanding — the one intending to issue the policy, and the other confidently expecting it would be issued. We think, also, that the testimony — particularly that which relates to the interview when Sterne was present — justifies the conclusion, that the new policy was to be issued at or soon after the expiration of the old’ one, or when by its terms it would expire — November 5, 1878. We, therefore, think that a jury, weighing the testimony bearing on this question, would come to the conclusion, that the policy was to be issued early in November, which would fix the agreed date before the property was destroyed by fire ; and we should, and do reach the same conclusion. Adler testified that, according to his understanding, the new, or renewal policy, was to be for two thousand dollars, and entirely on his merchandise, Kayser’s testimony is, that the sum 248 of the insurance was to be fifteen hundred dollars — twelve hundred on the merchandise, and three hundred on the furniture. On this discrepancy, the argument is made, that there never was a concurrence of the two minds, and, therefore, there never was a contract to insure. We can not assent to this. It'is manifest that Kayser thought he had made an agreement to insure. If he had not, he would not, without further instructions, have issued the policy bearing date November 19. And Adler thought there was such agreement, as his remarks to Kayser, when he reached Selma (remarks not denied, but corroborated by Kayser) tend to show. We think the solution and reconciliation of this discrepancy are found in the fact, of which there is some testimony, that while Adler wished to continue his insurance of two thousand dollars, Kayser was unwilling to let it stand above fifteen hundred ; and the matter of fixing the amount and placing the risk was left with Kayser, as a friend of the assured. The discrepancy, then, does not prove there was no agreement. It is the common case of antagonist witnesses, differing as to some of the terms of their contract. The appellant succeeded in convincing the court of the correctness of its version, and has no ground of complaint, as to this question. We fully concur with the City Court of Selma in its several findings, and the judgment must be affirmed.