RENDERED IN INSURANCE CASES, IN THE UNITED STATES STATE SUPREME COURTS. From certified transcripts in our possession. SUPREME COURT OF WISCONSIN. MATTOON MANUF'G CO. vs. OSHKOSH MUTUAL FIRE INS. CO.* The agent solicited the insurance of a manufacturing risk, but was told that until the inventory was completed the apportionment of the amount between the building, machinery, and stock in acccordance with a printed form handed to the agent, could not be determined on. Finally, by agreement a blank note was signed by plaintiff without date or amount, payable in installments at such times as the company might assess and given to the agent, together with a blank application also signed, both to be filled out at such time as the proper apportionment should be sent by the company. These were forwarded by the agent with a request to hold them until the forms were sent. Held, That there had been no completed contract of insurance. SEAMAN & WILLIAMS and JOSHUA STARK, for Respondent. ORTON, J. This suit was instituted by the respondent company to recover $5,000 insurance, by virtue of a contract of insurance between the Decision rendered, November 1, 1887. VOL. XVII.- 1. 22768 parties, made on the twenty-fifth day of August, 1886, on account of loss by fire occurring on the tenth day of September, 1886. The pleadings are such that only one single issue was presented, and that was whether there was any contract of insurance between the parties, or whether the facts proved constituted a contract of insurance. It was stipulated by appellant's counsel that the circuit court in which the action was tried might direct a verdict for either party, as it might be advised from the evidence, and that the only error that the appellant can assign will be a matter of law arising upon the finding that there was a contract upon the facts proved. This seems to be the effect of the proposition made by the learned counsel of the appellant, found in the record. The court thereupon overruled the motion of the defendant to direct a verdict in its favor, and directed a jury to find a verdict in favor of the plaintiff for the sum of $4,800, with interest on that amount from the fourteenth day of September, 1886, and the defendant's counsel excepted to both rulings. The defendant's counsel thereupon made a motion for a new trial on the minutes, on the ground that said verdict is contrary to the law and the evidence, and excepted to the overruling thereof. It is substantially stated in the complaint that about the twentyfifth day of August, 1886, the respondent gave its note to the appellant for $1,000, payable in installments at such times as the appellant might order or assess, with a blank application annexed thereto, duly signed by the respondent; and that the same was accepted by the agent of the appellant with the understanding and agreement that the same would effect a contract of insurance, and that such agent should fill out, or cause to be filled out, the blanks in said application and note, in accordance with the facts relating to the ownership of the property to be insured, with a description of the risk, of which a printed form issued by the respondent for such purposes, was then and there exhibited to the appellant's said agent; and that thereupon a written policy of insurance for such time and for such terms, in accordance with such agreement, should be made by said appellant, and forthwith delivered to the said respondent. It is further stated in the complaint that said note and application were by said agent forwarded to, and are in the possession of, said appellant, and said agreement was duly reported to said appellant, and said appellant duly accepted of said risk, and notified the respondent thereof, but has neglected to send the written policy so promised to the respondent, and continued to so neglect, even after the fire, to send or deliver the same to the respondent, and refuses all liability in the premises. These statements are followed with the proper statements of the loss of certain property by fire, and of demand and refusal of payment, etc. It is very clear that these facts make a complete, subsisting, and valid contract of insurance, without the written policy that the appellant company so neglected to send or deliver to the respondent. (1) It is alleged that the appellant gave its note of $1,000 for such insurance; (2) that there was an understanding and agreement upon the acceptance of said note and application by the appellant, that the same would effect a contract of insurance, and that the agent should fill out the blanks therein as to date; (3) that said agent should fill out said application with a description of the risk, of which the printed form was then and there exhibited to said agent; and (4) that thereupon a written policy of insurance, for such time and terms, should be made out and delivered forthwith to the respondent; (5) that the appellant neglected, and still neglects, to do these things; and (6) that the appellant duly accepted of said risk, and notified the respondent thereof. These allegations are necessary and vital to make the contract of insurance perfect and complete. These important allegations were virtually denied in the answer, and it is substantially alleged that the note was in blank as to date; and the application was in blank as to date, and the description of the property to be insured, contained in a form to be thereafter made and furnished to the appellant by the respondent, and that such form was never furnished to the appellant until after the loss by fire had occurred. In this connection it is proper to say that it is claimed on behalf of the appellant that, admitting the facts stated in the complaint to be true, there was no contract of insurance, because there had been no payment of the first installment of the said note, as the first year's premium on said risk, according to a by-law of said appellant company, that makes it liable only after such payment as a condition precedent. It seemed to be customary for said company to demand and receive such one year's premium on the delivery of the policy; and there is in evidence a policy made out and delivered, bearing date the twenty-fifth day of August, 1886, the date of the application in that case as well as in this, to the Halstead & Whiffin Manufacturing Company by this same insurance company, for $5,000 on the main building, and three classes of property as the contents thereof, and said premium of $200 was demanded and paid at the time of such delivery. George B. Mattoon was the president of both |