Fuchs v. Germantown Farmers' Mutual Insurance

Cassoday, J. The findings of fact seem to be justified by the evidence. They negative.any error or mistake as to the commencement or termination of the period or term of insurance, either in the original policy or the renewal certificate. They also negative any fraud or misrepresentation on the part of the defendant or any of its agents. The action is not for a breach of contract of renewal, as in King v. Hekla Fire Ins. Co., 58 Wis., 508, but is upon a policy and renewal made long, prior to the loss, and which were alleged to have been still in force at the time of the loss. If they were then in force, there can be no question but what the plaintiff is entitled to recover. But if they were not then in force.— if they had expired prior to the loss,— then it is equally certain that the plaintiff cannot recover. The original policy, by its terms, expired June 10, 1878, and the renewal, June 10, 1879. The fire did not occur until June 16, 1879. It is urged that because the renewal was dated June 19, 1878, and by its terms expressly continued the policy in force for the term of one year, to wit, from June 10, 1878, to June 10, 1879, at noon, it should be construed as.though it had read that it should be continued in force for the term of one year from the date thereof; and to enforce this claim it is insisted that the defendant was not bound until the renewal receipt was in fact issued. The difficulty with this contention is that it calls upon the court to make an agreement for the parties, instead of construing the agreement which they made for themselves. This is not the province of the court. Redmon v. Phoenix Ins. Co., 51 Wis., 302, 303. If it is true, as claimed, that the plaintiff had no contract of insurance binding upon the company during, the first nine days of the year stipulated for, yet that [291] would not authorize the court to extend the contract for a period of nine days after the expiration of the year. Bast v. Byrne, 51 Wis., 531. It is a circumstance entitled to weight in giving a construction if t'he wording of the contract is such as to admit of construction. In Isaacs v. Royal Ins. Co., L. E. 5 Exch., 296, the policy was for six months, from February 14, 1868, to August 14, 1868, but the precise time of neither day was named. Taking the whole policy together, the court held that the first day was excluded and the last day included. Where the precise time of the commencement and end of the term is not definitely fixed there is some room for construction, but even in such case, and where the alleged agreement rested wholly in parol, the rule contended for has been rejected. Strohn v. Hartford Fire Ins. Co., 37 Wis., 625; Taylor v. Phœnix Ins. Co., 47 Wis., 365. If in such a case the absence of any definite agreement as to the duration of the risk renders the contract incomplete, and hence ineffectual, then certainly the clause in a written agreement definitely fixing the precise duration of the risk should not be rendered nugatory by mere construction. The application for the insurance was a- part of the contract, and properly admitted in evidence. But if it were otherwise, yet, since the trial was by the court, the error would be immaterial. It is unnecessary to continue the discussion further, for we find no material error in the record. By the Court.— The judgment of the circuit court is affirmed.