Imboden v. Detroit Fire & Marine Insurance

Ellison, J. This cause comes to us on a demurrer to plaintiff’s petition, the material portion of which is as follows: “ That the defendant is, and was during all the dates hereinafter mentioned, a fire and marine insurance company, the same being a corporation organized under the laws of the state of Michigan, and doing business in said state, and also in the state of Missouri; that the said defendant, by its certificate of fire insurance number five hundred and thirty-six, which is herewith filed, dated August 11, 1885, did insure one W. K. Hewitt against loss or damage by fire, under and subject to the conditions of open policy number twenty-six, issued by said defendant, to one S. S. McGribbons, in the sum of two thousand dollars, on grain belonging to the said [328] Hewitt, then contained in the ‘Advance Elevator,’ situated in West Kansas City, Missouri, from the first day of August, 1885, to a date in the future, which date was purposely left blank in said certificate of insurance, and the date of expiration was to be and remain indefinite, and was to be terminated in the future by having the date of its termination inserted in the blank left for that purpose by the said defendant or the said S. S. McGribbons, its agent; and the said certificate of insurance was made payable to the said insured, or his order, and upon the return of said certificate; and other insurance was permitted therein to the amount of two thous- and dollars ; that said certificate was duly issued to the said W. K. Hewitt, as the owner of said grain, for and in consideration of the usual premium charged by said defendant for that class and character of insurance, to be paid by said Hewitt or by the owner of said grain as called upon, the amount of said premium to be determined by the length of time said certificate of insurance should run. And afterwards, on the--day of--, 1885, the plaintiff herein purchased the said grain in said elevator from the said Hewitt, and said certificate of insurance was duly assigned to plaintiff, etc. * * * Plaintiff further says that, in pursuance of a demand or request from the said S. S. McGribbons, agent of the defendant, he, plaintiff, paid the premium due on said certificate of insurance up to January 1,1886, and said McGribbons gave plaintiff a receipt therefor, and the policy was still left open, and the plaintiff was to pay the premium which might accrue thereon until the same should be closed'; and plaintiff has, at all times, been ready and willing, and still is ready and willing, to pay the premium due and owing on said certificate of insurance from and after said January 1, 1886.” The ground of the demurrer is, that the petition did not state facts sufficient to constitute a cause of action, in that no time was fixed by the contract when the risk was to end or the policy to expire. I will concede the [329] point made by defendant, that in contracts of insurance, tlie duration of the risk must be agreed upon. The -defendant is correct in the legal propositions advanced, and the only question in the case is, in what degree are they applicable to the case as it is put, in the petition. In point of fact, is not the duration of the risk fixed, in a legal sense '?■ The agreement between the parties was that the insurance should terminate at a time when defendant might elect that it should end and so insert the date left blank for that purpose. At the time of making the contract, it may be supposed it was not known how long the insurance would be wanted or how long defendant would wish to continue the risk, and the parties, therefore, agreed upon the mode and manner of fixing-that time.' It is not a case where no reference is had or agreement come to, as to the duration of the contract. That point was considered by the parties and an agreement had with reference thereto. The minds of the parties met and fixed upon a mode of ascertaining the duration of the risk. Suppose it to have been true, as a matter of fact, that, at the time of the contract, plaintiff wanted insurance on hjs wheat, but did not know how long he would want it; and that defendant wanted to insure the wheat, but did not know how long it would want to continue the risk; is there any legal principle forbidding them to make it a part of their agreement that the contract should determine at a time to be named by defendant ? Whether such contracts permitting one party to terminate them does not also permit the other to do the same, need not be considered here, but that such contracts are valid until determined in the manner provided, I make no question. Though subject by its terms to be terminated by either party, a contract is not thereby invalid. Church v. Ins. Co., 19 N. Y. 305. This illustration is given by a celebrated author : “If a man shall make a lease to J. S. for so many years as J. N. shall name, it is a good one, for, when J. N. has named the number of years, the duration of the term [330] becomes fixed.” 1 Wash. Real Prop. 294. So a lease for so long as the lessee shall please is not void for uncertainty in duration, but is a good lease determinable, as is said by some, at the will of either party, or may be construed to be a tenancy at will. Transfer Co. v. Lansing 49 N. Y. 508. The case of Strohn v. Ins. Co., 37 Wis. 625, is relied on by defendant in support of the demurrer, but 1 conceive the cases to be unlike. In that case the amount of premium to be paid and the continuance of the risk were not agreed upon ; nor was there anything in the agreement from which these matters could be fixed and determined. Nothing was said as to the duration of the risk. In this case the rate was fixed and one instalment was paid to defendant as agreed upon, and the time oi the duration of the risk was spoken of and an agreement had in reference thereto. While the duration oi the risk was not determined at the time, it was not, as was said in that case, “indeterminable.” The maxim, id oertvm est quod, cerium reddi potest, can well apply to the terms of this contract.' Again, defendant has recognized the validity of this contract in a way such as to create an estoppel. It is alleded that defendant demanded of plaintiff the payment of the premium up to January, 1886, which was paid to, and accepted and receipted for by defendant, and the policy by agreement was to run as before. Such action was sufficient to work an estoppel, especially if the payment was made, as it of course was, on the faith of, and in reliance upon, the contract as stated. As the cause is to be remanded it might be well foi plaintiff’s plea of estoppel to be made somewhat more specific. With the concurrence of the other judges, the judgment is reversed and the cause is remanded.