Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-03-27

any material fact or circumstance
stated In writing has not been fairly
represented by the insured; or if the
insured now has or shall hereafter
make any other insurance on the said
property, without the assent in writ
ing or in print of the company"
two defences to this action are in
terposed by the defendant, first, that
the policy was rendered void by mis-
statement of material facts contained
in tire written application signed BY
the plaintiff. and, second, that by
stipulation in the policy itself it was
rendered void by a prior valid lnsur-
anee policy in the Connecticut Fire
Insurance Co. existing when the APP
plieation for the policy in suit was
accepted.
"A representation is continuous
statement from the time it is made
during the progress of the negotiations
and down to the time OF the compile
ton of the contract; 50 that though
in point of fact the representation be
true when actually made, yet il by
some change intervening between that
time and the time of completion of the
contract it then becomes untrue, it
will avoid the contract, if the change
be material and to the prejudice OF
the insurers, or be such as might
probably influence their opinion as TO
the ACCESSIBILITY of accepting the risk
The law regards it as made at the
time the contract is entered into. And
the same rule applies in case OF con-
cealuIent''
The plaintiffs representation in re-
gard to other insurance in his appli-
cation OF July g. which he coYenanted
to he u full and true exposition of
all the facts, etc, was not a full
statement in regard to other insurance
on July - when his application was
accepted and the contract made. for
the reason above stated, thai in the
meantime, namely. July Is. the plain
tiff had procured other insurance on
the same buildings for $3.50 in the
Connecticut Fire Insurance co. with
ont the knowledge Of the defendant
company, and was still the holder of
that policy at the time OF the fire on
August s. The contract made with the
defendant company applied to risk
materially different from that de-
scribod in the plaintiffs application
The minds of the parties did not
meet in mutual understanding of tie
situation existing at the time the dp-
plication was accepted and the pol
icy never became valid contract be-
tween the parties The fact that the
feasibility of procuring further insur-
ance WAS mentioned between the
plaintiff and the agent and that the
plaintiff expressed an intention to OBJ
tain other insurance, Will not conSu
tute a waiver or estoppel on the de-
PENDANT, it being admitted that no
officer or agent of the company had
any knowledge until after the fire that
the plaintiff had in fact obtained other
insurance.
Nor did the assessment by the di-
rectors of per cent. on the plaintiff S
premium note constitute sufficient eY-
idence of either "a waiver or ratifica-
ton on the part of the company. The
defendants claim thai the plaintiff S
note was inadvertently included in the
assessment, is rendered probable by
the fact that the plaintiffs claim for
insurance was rejected at the same
meeting and that his assessment of
Sl.67 the cash premium and premium
note were subsequently returned to
the plaintiff.
But the stipulation in the policy it,
self that it shall be void IF the in
sured now has or shall hereafter make,
any other insurance on the said prop
erty without the assent in writing or
in print of the company" constitutes
another insuperable objection TO the
maintenance of this action. At the
time the plaintiffs application of July
6. was accepted by the defendant conf
pany, il has been seen that the plain
tiff in fact had other valid insurance
to the amount of $3.50 in the Connec-
ticut Fire Insurance Co, which he had
procured on July Is. and that no OIL
Ger or agent of the defendant company
lad any knowledge of such prior in
suranee until after the fire.
Upon this state of facts under such
a stipulation. the plaintiffs policy in
the defendant company il otherwise
operative, was rendered void by the
existence of n prior valid insurance.
Day VS.. Charter Oak ms. Co, 81
Maine, 81; DolloF VS.. ms. Co. 81
Maine. 226.
The certificate must accordingly be,
Judgment for the defendant.