Harris & Cole Bros. v. Royal Canadian Insurance

Rothrock, J. i insurance ■ o?npoiicy mescrrption. I. It is not denied that, if there had been á specified escription of the one story frame building on the north s^e public square, west of Fourth street, set °ut ^e policy, a removal of the property insured to another building would have avoided the policy. But it is insisted that as no particular building is described in the policy the removal to another building answering the same general description, as to structure and location, was no violation of the contract of insurance. We think the building was described in such a manner that there could be no mistake as to its location. Contracts of insurance must be construed by the same rules as other contracts. If the defendant had made a lease to the plaintiffs of property, describing it as the one story building containing their goods, and on the north side' of the public square and west of Fourth street, in Fort Dodge, it would not be claimed that plaintiffs would have the right to remove their goods into another building and maintain that that was the one which was leased. In our opinion the language used by the jiarties in describing the [238] situation must be regarded as a warranty, not only that the property was in a certain building, but that it would continue to remain therein. McClure v. The Girard Insurance Company, 43 Iowa, 349, and authorities cited. It may be proper to observe that there is nothing in the character of the property, nor in the nature of its use, that would warrant the inference that the parties contemplated it should at times be used or kept at a place other than that where it was situated when the insurance was effected. 2.-: con-of loss. We arrive at the conclusion that the policy became void upon the removal of the property, because there was a Avarranty that it should remain in the building where it was when insured. If, however, the clause of the policy under consideration were not sufficient to defeat the action, we are unable to see hoAV there can be a recovery because the plaintiffs further stipulated that their proof of loss should show that the property was at the time of the fire contained in the building described in the policy. We know of no reason why this clause of the policy is not binding upon the parties. It is, in effect, a plain stipulation that the property should not be ¿removed. s. — :-: retention of premium. II. It is urged that, as the premium for the whole period was paid, the removal of the goods did not necessarily termínate the contract of insurance; that it only , . . . . . ' authorized the insurer to rescind the contract if it desired to do so, and that no offer has been made to return, the unearned premium. It is not claimed that the policy remained in force by reason of the defendant’s knowledge and acquiescence in the removal of the property. If such claim should be made it might be competent to show, in connection with other facts, that the defendant retained the unearned premium. But we are unable to see how plaintiffs can recover upon a contract which their own act avoided. The defendant has done no act to avoid the contract, but hasj so far as this record shows, held itself in readiness to perform all it stipulated to perform. Aststemsiiu