Conover v. Wood

Gilfillan, C. J. Plaintiff stored with defendants, as warehouse-men, in what is designated in the ca e as the “Old Security Warehouse, ” certain household goods; loss or damage from certain causes. [439] ¡among them fire, to be, by the contract of storage, at her risk; and she took out a policy of fire insurance upon them in that warehouse. Defendants afterwards removed them to another warehouse used by ¿hem, designated the “Itasca Warehouse,” and the insurance company indorsed on the policy its consent to continue it on the goods in that warehouse, and defendants promised plaintiff that when they should, as they then contemplated doing at some indefinite future time, remove the goods to another warehouse, they would give plaintiff notice thereof, so that she could have the insurance continued on the goods therein. After this, they, without the knowledge •of plaintiff, removed the goods to such other warehouse of theirs, •'designated the “New Security' Warehouse,” where they were after-wards destroyed by fire. They did not inform plaintiff of this last removal, and she did not know of it till after the fire. By the terms -of the policy and the indorsement it ceased to insure the property •apon its last removal. Defendants, at the time of that removal, knew the property was insured in the Itasca warehouse. The action -is for removing the goods, thereby rendering the insurance void, and •failing to notify plaintiff of it, so that she might have the insurance 'continued. There was testimony on the part of the defendants to ihe effect that soon after the removal of the goods to the New Security warehouse they had, through the telephone, a conversation with ¿he agent of the insurance company, in which, after they had informed him of the removal, in response to an inquiry made by him, lie promised to attach to the plaintiff’s policy a slip consenting to ■continue the insurance on the goods in that warehouse. The agent •denied this conversation. A request of defendants for instruction to the jury presents the •only question raised on this appeal. It was, in substance, that if they found that defendants informed the agent of the insurance company of the removal, and that he thereupon promised to make the necessary change in the policy, the promise would be binding on the •company, the plaintiff would have an adequate remedy on the policy, and cannot recover in this action. The court refused to so charge. There was no evidence that defendants had authority from plain■iiff to make any arrangement with the agent of the company with [440] regard to insurance. It could hardly be said, upon the evidence- of defendants as to the conversation had with the agent, that they assumed, or were understood by him, to be acting on plaintiff’s behalf. They did not apply for the company’s consent to the change of location of the goods, nor for it to continue the insurance. They only informed the agent of the removal when he inquired about it, and he then said that he would make the necessary change in the policy. The case would have been the same had any stranger met him on the street and given him the same information, and he had said to such stranger that he would make such change. But, conceding what is claimed by defendants, that plaintiff, when told of it after the destruction of the goods, — after they had ceased to be the subject of insurance, — might have ratified or adopted what, according to defendants’ testimony, passed between them and .the agent, as an agreement between her and the company, relating back to the conversation, that the insurance should continue, yet she was not obliged to ratify or adopt it. The parties had no such thing in mind when it was agreed that defendants should give her notice of removal, so that she might have the insurance continued. It was defendants’ duty to give her that notice. ’ No act of theirs would serve in lieu of performance of that duty, unless it put her in just as good a situation as performance would have done. Had the duty been performed, she might, and probably would, have had unquestioned insurance on her goods; she wouid at any rate have had an opportunity to get it. An opportunity to adopt or ratify a disputed and doubtful oral agreement by the insurance company to continue the insurance is not an equivalent for what she lost through the defendants’ neglect to give her the notice agreed upon. Order affirmed. (Opinion published 51 N. W. Rep. 337.)