Marx v. Williamsburgh City Fire Ins.

Ostrander, J. (after stating the facts). 1. The statute relied upon is an amendment of section 2 of Act No. 313, Pub. Acts 1887, entitled: “An act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving, or delivering spirituous and intoxicating liquors, and malt, brewed, or fermented liquors and vinous liquors in this State, and to repeal all acts or parts of acts inconsistent with the provisions of this act.” — 502 — It contains the following (2 Comp. Laws 1915, § 7032) : “Nor shall such wholesaler enter into any contract, agreement or other understanding with any person or firm authorized to sell such liquors at retail, by virtue of which contract, agreement, or other understanding or agreement such retailer shall be required to handle the brand of liquors manufactured or sold by such wholesaler to the exclusion of any or all other brands of liquor; * * * and all such agreements, contracts, or other understanding * * * shall be null and void and of no effect whatsoever.” It is not clear that the statute, or the principle of which it is declaratory, has any application here because plaintiff is not, strictly, a manufacturer or wholesaler of liquor, and it does not appear that the corporation, of which he is an officer, was in any manner interested in, authorized, or approved the contract made by plaintiff and Neifert. Assuming that the particular clause of the contract relating to the purchase and sale of beer upon the premises is void, because obnoxious to the statute, whether the entire contract is void depends upon whether it is' severable, so that, the illegal agreement being eliminated, there remains a lawful agreement, supported by a lawful consideration. The identical question was presented and decided in Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649 (90 N. W. 676), and Dierkes v. Wideman, 143 Mich. 181 (106 N. W. 735), in each of which cases it was held that the contract considered was not severable. The contract now before us is, I think, plainly a severable one. The owner asked $3,500 for the property. Plaintiff bought it from the owner, at the solicitation of Neifert, who contributed $1,000 of the purchase money, and with plaintiff agreed to pay^the remainder, with interest, to cause the property,;,.to be — 503 — listed for taxation in his own name, to pay the taxes,' keep up the premises, and keep them insured. There is a provision for forfeiting the contract for nonperformance of its covenants, but breach of the promise to sell only Marx Brewing Company beer is not a ground for forfeiture. The testimony does not disclose that the obnoxious stipulation influenced either plaintiff or defendant in making the original arrangement by which plaintiff agreed to buy the property, advance a part of the purchase money, and resell to Neifert. In the cases I have cited the illegal arrangement was the real arrangement, to which the matters in dispute related and out of which they grew. ¡ I conclude that by the land contract Neifert acquired an insurable interest in the premises, and as between himself and the defendant the policy, when issued, was valid. 2. The policy of insurance, no agreement to the contrary being thereon indorsed, was by its terms void “if illuminating gas or vapor be generated in the described building or adjacent thereto for use therein.” It is conceded that the indicated forbidden thing existed when the policy was issued and that the defendant’s agent knew it. It is not claimed that, if no change had been made in the method of generating gas, or vapor, for lighting, the policy would be avoided.'^' But as the defendant’s knowledge of the situation was imputed, and its knowledge of the change in method is not and cannot be imputed, the contention is that the condition stands, violated, with the same effect as though no knowledge of conditions had ever come to defendant. The obvious, and in my opinion the conclusive, answer to this reasoning is that the condition, relied' upon was waived when the policy was issued; that is, it was agreed, in essence, that generating illuminating gas, or vapor, in the described building or adjacent thereto, would not avoid the policy. Defendant is charged with knowledge of the condition existing — 504 — when the policy was issued, and the condition had not changed when the fire occurred. There was no new, or other, or different, breach of the policy condition after the policy was issued. 3. No one who testified at the trial claimed to know how the fire originated beyond this: That the atmosphere seemed to be charged with gasoline fumes, and that the lighting of a match was followed by some disturbance described as an explosion. There is testimony to the effect that it was not, probably, the fault of the lighting apparatus. In filing proofs of loss the insured might have described in detail what occurred, since he was present and lighted the match, instead of saying that the cause was unknown. There were several persons in the room at the time, and support for the charge that the insured was guilty of such fraud and false swearing as to avoid the policy, because he gave neither the details as he saw them nor his own opinion of the cause of the fire in his proofs of loss, seems to me to be lacking. It is not pointed out in what respect he thus deceived defendant, or deprived it of the necessary or convenient knowledge that is supposed to be afforded by formal proofs of loss. These conclusions relieve me from examining other suggested points. The judgment is affirmed, with costs to appellee. Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.