, 1892-07-11
INSURANCE CASE.

appear in The DAILY and WEEKLY TRIB
UNE.]
Louis Henschel, respondent, VS.. The Or
egOn Fire & Marine Insurance company
appellant. No. 449. Filed June 30th
1892. From Pierce county.
The respondents goods were insured by
the appellant "While contained in the two
story and basement frame building" de-
scribed, and desiring to remove them to a
building several blocks distant, in the city
OF Tacoma delivered his policy tc
appellants agent who promised to
endorse appellants consent to the
removal upon the policy in writ
ing, and return it to him. Before the
endorsement was made the building to
which the goods had been in the meantime
removed was burned and a loss oc-
cured. The agent then endorsed
can collation. upon the policy
and the appellant disclaimed LA
bility, and in this action respondent recoV-
cred the full amount of the insurance.
The sole contention here is as to the
effect which should be given to the follow
ing clause in the policy:
This policy is made and accepted sub
]ect to the foregoing stipulatiOns and con-
ditions, together with such other pro-
visions, agreements or conditions as may
be endorsed hereon, OF added hereto; and
no othcer, agent or representative of this
company shall have power to waive any
provisions or conditions of this policy, ex-
cept such, as by the terms Of this policy,
may be the subject of agreement indorsed
herein or added hereto; and, as to such
provisions and conditions, no officer, agent
or representative shall have such power, or
be deemed, or held to have waived such
provisions or conditions, unless such
waiver, If any, shall be written upon or
attached hereto; nor shall any privilege or
permission affecting the insurance under
this policy exist or be claimed by the in
sured unless so written or attached"
The appellant substantially claims for
this clause the construction that until its
consent was physically endorsed upon the
paper the property of the respondent was
unprotected IN its new location, notwith-
standing the agreement Of the agent to en-
dorse the necessary consent, and his receipt
and retention of the policy for that pur-
pose. The respondent claims that the con-
duct OF the agent estops the appellant to
say that the proper endorsement was not
made.
Appellants counsel have presented us
many eminent authorities upon the subject
of the waiver of conditions in such con-
tracts by agents, but with due respect to
the learning Of counsel and the force of the
authorities they produce, we cannot re-
gard this as a case of technical waiver We
do not find that the respondent is propOs-
ing to strike from the policy a single line
VI WOIu5 DuG GudJ, Iully recognizing bQe
binding force OF the EXTREMIST stipulatiOns
against him he went to the agent and him
self proposed strict compliance with
them. To this propOsion the agent assent
ed and agreed, not that anything should be
waived, but that he himself would endorse
upon the contract the words necessary to
cover the goods in their new location and
now the respondent, invoking the equita-
bic rule that since he has relied upon the
promise made to him, what was agreed to
be done shall be taken as having been
done, claims that the contract is what, but
for the negligence of the agent, undoubt-
edly would have been.
The only material question then is
whether the agent had power to make the
required endorsement in writing. He as
sumed to have it for he agreed to do it,
and received the policy for that purpose,
thus lulling the respOdent into feeling of
security, and IN all probability preventing
him from procuring insurance elsewhere.
And, while there is no evidence on the
subject, disconnected from the policy
itself, we think, that, as a fact, he did not
have the authority. The appellant was
foreign corporation whose agent he was at
Tacoma. This policy was, and presum-
ably all policies issued by him, were, in
printed form, with the signatures of the
president and secretary stamped, and only
requiring the written signature of the agent
to make it complete He was a local gen
eral agent, who, in the absence of some re-
strictiOn of his authority brought home to
the respondent, was as to him the appel
liant itself
Maryland ms. Co. v. Gusdorf, 43 Nd. sos,
is a case on all fours with this one, in
pleading, conditions of policy, and facts,
except that there the facts tended to show a
waiver only. The court, speaking of the
position of the plaintiff, after receiving the
assurance OF the company that he could
remove his goods without the endorse
ment, and acting upon it., said:
"By so acting he did that which preiu-
diced his interest under the policy. He
thereby gave the company the advantage
OF retaining the premium without further
continuance of the risk, and also the ad-
vantage of setting up this defence against
their liability after the loss had occurred.
Would not the success of this defence Op-
crate fraud upon the assured2 We think
it clear the company ought to be, and are
estopped from making it. Whilst the law
affords ample protection to these compa-
nies, as well as to individuals againstfunds
misrepresentation and breaches of war
ranty, it will not, and ought not to help
them to perpetrate frauds upon those with
whom they make contracts, in which good
faith on both sides, as well in their cOntin-
uance, as origin, has always been consid-
cred as ruling consideration"
So in this case, the appellant, having re-
ceiYed the premium for years insurance,
now without any offer to return any por-
ton of the unearned premium, sets up
what we deem an uncOnsciOnable defence,
when it claims that after actually insuring
the respondent less than thirty days, the
neglect of its own agent to do what he
ought to have done should relieve it of all
liability.
Judgment affirmed. STILES, J.
We concur: Scott, j.; Dunbar, J.