The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-03-19

make IL on one side would have been a
gross actual fraud, and 10 enforce It
would be an act OF gross injustice. 80
that whatever binding contract exists
between the parties must have been
made between the parties before the
destruction OF the property insured. III
this binding contract-that is, binding on
Doth sides. by which each was bound, and
which either could enforce against the
other-had existed before the fire occurred
and before the policies were issued, then
the plaintiff would be entitled las, indeed.
would be the defendantl TO enforce the
same, whether there had been any transac-
lions between the contracting parties after
the lire or not; and upon this ground 1t
has been properly held that the plaintiff,
under such circumstances, having already
a binding contract OF insurance executed,
or ,chich either party could cause TO be eI-
ecuted by the other, was under no obliga-
tions, either legal or moral, to give any in
| formation TO the insurance company OF the
| fire when applying for the policy for which
he had paid, or which, by his contract, he
was entitled TO receive. The plaintiff
claims that on the 10th OF December,
some days before the fire occurred, when
applied TO 10 make this contract, he
said 10 this solicitor ''ii he was disposed 10
| take the risk of the barn and peanuts he
would be pleased TO have him do So"
"Stating at the time that he had no funds
| with him at present and would pay him
| soon for the policies, and asked him il that
would make any difference, to which he
replied none, and then asked the solicitor
! il he might consider the property insured
| from that date, and the solicitor said yes."
| On the other hand, the solicitor SAYS that
he did not make any contract on the first
| interview that he replied that he did not
know the rates. and so would write and in
quire that he told him TO let him know
through the post-ofiice when he heard, and
| he did let him know on the 29th Of Noyem-
Der following; that he afterwards met him
on the street. and the plaintiff said he had
other business to attend to when asked
about the matter. The next time he saw
him he met him on the porch Of his house,
and when asked about it plaintiff said he
would like to insure the barn and peanuts
and he made a memorandum on piece Of
paper of the amount. and some description
of the property. The plaintiff then said
that he bad no money and could not pay
the premium, and asked him what effect
that would have. He told him that he did
not know; that he had bad property in
sured and paid the premium at the end Of
the month, but never had 4 fire to occur,
and if it had he did not know whether he
would have got the insurance or not.
THE PLAINTIFF SEEKING TO PAY.
That the plaintiff then said il a fire
should occur he would hasten down TO pay
the premium, and he asked solicitor how
that would be. The solicitor replied that
he hoped nothing OF that kind would
occur. That on the 23d of December fol-
lowing he met plaintiff, who told him he
had Just been paid some money, and lcGS
reddg to pan the premiums, land asked
me il had the policies with me-" The
solicitor promised to send for policies, and
pidintif then asked for the amount of the
premiums, and paid the same. and before
he received the policies. Why did the
plaintiff then pay the amount OF these pre-
mumS. before the policies were delivered
to him? Was it because The property in
question had been totally destroyed by
fire on the day before! For the first time
in all the negotiations we find the plaintiff
seeking the solicitor to pay. Heretofore
he had put the solicitor off with the fami-
liar saving, hare no money at hiS
time" Was this change on his part be-
cause the fire had occurred the night be-
fore? He said to solicitor. not that his
property had been burnt up, but he eX-
plains his change of department by re-
marking that he had Just been paid some
nlOney This is suit for the specific per-
formance of this alleged contract. a court
will enforce the performance OF a contract;
but the plaintiff must establish the contract
and prove it as stated in the bill and the
contract must be certain, fair, and just i'm
all its parts. .-McCOmas rs. EaSley, u
Graft: StearnS rs. Beckham, 3lst Graft.
$50.
II the evidence is conflicting and it is
not clear that contract was In fact made,
a bill for specific performance will be dis
missed.-Snydam Us. Columbus Insurance
Company, Is Ohio, 459; DINING Us. PhG-
nix Insurance Company, 6S H., 4li The
proof OF the contract may be by parol, but
it must he full and clear, and proof OF 4
mere offer on the one hand, without ac-
ceDtance OD the othcr, or OF an incOm-
plete cOntract-that is, when anything Is
LETT open for future adjustment, either as
to the amount OF the risk, the premium to
be paid, or the duration OF the risk-no
contract-Oblgation eXists.-N. +. Fire and
Marine Insurance Company rs. Robinson,
% Ind. The fact that m application has
been made for insurance, and long time
has elapsed and The rejection Of the risk
has not been signified, does not warrant
presumption OF its acceptance. In such
cases there must be an actual acceptance,
or there is no contract.
CHANCERY COURT SUSTAINED.
The statement OF the plaintiff that he
L. tI,. mi On ha rap nj a
10th of December receives some confrma-
ton from the fact that when the money for
said premium was paid on the day after the
fire, the plaintiff knowing and the solicitor
not knowing of the fire, the receipt then
given by the solicitor was dated the 10th
OF December. although written on the 23d
OF December. The statement OF the sOlici-
ter, on the other hapd, Is corroborated by
the circumstances that he, the said solici-
tor, did not forward any application, nor
did he write for the policies after the con-
versation. He had appeared anxious to
effect the insurance, and il he had done so.
il appears reasonable that he would have
taken the next step and obtained the poll
cies. II the contract had been made on
the 10th OF December, why did the plaintiff
ask the solicitor on the 23d what was the
amount OF the premiums
A calculation then had to be made. Upon
a comparison OF the statements II seems
that the solicitor is sustained by the cir
cumstances in his statement, and II appears
that the plaintiff has failed to make out a
contract so clear and so certain as to au-
thorize the Court to decree its specific en-
forcement. The solicitor was, undoubted-
edly, to some extent the agent OF the com
pany, but the evidence shows that at the
outset OF the negotiations with the plain
tifT the plaintiff had notice OF his limited
powers-be could solicit, not perfect or
complete contracts OF insurance, and the
plaintlff was informed at the first inter-
view that he could not give him the rates,