メ Where a policy is made absolutely void by a breach of any of its conditions, it is not revived by a mere waiver.1 But generally, if preference to the latter, and it may, therefore, be inferred that they could not have understood the language used by the English court in the broad extent claimed by the text-writers. Mr. Justice Marcy, in Mactier v. Frith, said: "The principle of the decision of the King's Bench is simply, that the acceptance of an offer, made through the medium of a letter, binds the bargain, if the party making the offer has not revoked it, as he has a right to do before it is accepted. The rule laid down by the Supreme Court of Massachusetts regards the contract as incomplete until the party making the offer is notified of the acceptance, or until the time when he should have received it, the party accepting having done what was incumbent on him to give notice." By the civil law there is no contract if the letter of retraction is written and sent before the letter of acceptance is sent. Pothier, Contrat de Vente, p. 1, § 2, art. 3, 1 Smith v. Saratoga County Mut. Fire Ins. Co., 3 Hill, 508, 511, per Bronson, J. See also Neely v. Onondaga Co. Mut. Ins. Co., 7 Hill, 49. A forfeiture, however, arising from a deviation may be waived by writing. See post, c. 8, § 6. In Frost v. Saratoga Mut. Ins. Co., 5 Denio, 154, the assured, in his application for insurance against a fire risk, which was made a part of the policy, had untruly stated that there were no buildings within ten rods of the buildings insured. The insurers, with a knowledge of the loss and of the inaccuracy of the statement, afterwards made assessments on the premium note given by the assured, which he had paid. Held, that the insurers were n. 32, Cushing's Translation, p. 18, says: "In order that the consent of the parties may take place in the last-mentioned case, it is necessary that the will of the party, who makes a proposition in writing, should continue until his letter reaches the other party, and until the other party declares his acceptance of the proposition. This will is presumed to continue, if nothing appears to the contrary, but if I write a letter to a merchant living at a distance, and therein propose to him to sell me a certain quantity of merchandise, for a certain price; and, before my letter has time to reach him, I write a second, informing him that I no longer wish to make the bargain; or if I die, or lose the use of my reason, although the merchant, on the receipt of my letter, being in ignorance of my change of will, or of my death, or insanity, makes answer that he accepts the proposed bargain, yet there will be no contract of sale between us; estopped by these facts from setting up the warranty, and were liable for the loss. But see Smith v. Saratoga Co. Mut. Ins. Co., 3 Hill, 508; Neely v. Onondaga County Mut. Ins. Co., 7 Hill, 49; Murdock v. Chenango Co. Mut. Ins. Co., 2 Comst. 210. Whether a mere parol waiver would be sufficient depends, we think, upon the further question whether the policy provides that it shall be in writing, for generally a parol waiver would be sufficient. See Goit v. National Protection Ins. Co., 25 Barb. 189; Hale v. Mechanics' Mut. F. Ins. Co., 6 Gray, 169. In Cockerill v. Cincinnati Mut. Ins. Co., 16 Ohio, 149, it was held that a verbal waiver without further consideration was not binding. certain things were to be done before the contract would be complete, the issuing of the policy would be a waiver of their performance.1 SECTION IV. Of the Form and Essentials of a Policy of In surance. The policy varies in different States, and from time to time in all our States; but the general form and phraseology of the old English policy is usually, or indeed always, retained; and it might subject all parties to much inconvenience, if forms and phrases were abandoned of which the precise meaning has been at length settled, by long and expensive litigation. for, as my will does not continue until his receipt of my letter, and his acceptance of the proposition contained in it, there is not that consent or concurrence of our wills which is necessary to constitute the contract of sale. This is the opinion of Bartholus, and the other jurists cited by Bruneman, ad. I. 1, § 2, D. de contrah. empt. (18, I. 1, § 2), who very properly rejects the contrary opinion of the Gloss, ad dictam legem." He then goes on to say, that if the merchant suffer any wrong through the refusal, he has his right of action, though there be no contract. Toullier, also, vol. 6, No. 30, puts this case: "Offer made January 1st, acceptance January 5th. The letter of the 5th arrives on the 8th, but on the 7th, the acceptance being unknown, I revoke. Held, no contract." Mr. Justice Ware, in the case of The Palo Alto, Daveis, 357, held, that an offer until received is but a proposition in mente retentum, and that the revocation must date, therefore, from the same time, that is, when it was received. Mr. Justice Duer, in an elaborate note in his Treatise on Insurance, Vol. I. p. 116, supports with great ability the doctrine that the party accepting must have no tice of the retraction before the letter of acceptance is mailed. And this learned jurist founds this opinion upon his construction of Adams v. Lindsell. And he considers the case of Head v. Diggon, 3 Man. & R. 97 (if it was decided on the facts of the case), to be inconsistent with his views of the law. In this case A offered goods to B at a certain price, and gave him three days in which to make up his mind. Before the time expired A offered the goods to C. Held, that B could not declare against A as upon an absolute bargain. Although the case may have gone off on a question of pleading, still it is so similar to Boston & Maine Railroad v. Bartlett, supra, that Mr. Duer may, therefore, perhaps, be supposed as differing from that case. At all events we consider Boston & Maine Railroad v. Bartlett as unquestionable law. 1 Hall v. Peoples' Mut. F. Ins. Co., 6 Gray, 185. Liberty Hall Association v. Housatonic F. Ins. Co., 7 Gray, 261. It was held, in this case, that the issuing of a policy upon an application for insurance, one interrogatory in which was unanswered, was a waiver of that defect. The policy is subscribed only by the insurers; but it is a binding contract, or evidence of one, on both sides; and as soon as there is an inception of the risk the insured is bound by the policy, as respects the premium and otherwise, as much as if he signed it himself. But until there is an inception of the risks insured against, the insured has his option whether they shall begin under the policy or not. Therefore, until these risks are incurred, so as to make him liable for the premium, there is no obligation resting on him that can be enforced by the insurers. All the stipulations on his part are merely conditions, a compliance with which is necessary to enable him to recover against the insurers; but no action can be maintained by them against him. The policy which usually states the reception of the premium binds the insurers, although the premium has not been paid, nor a note for it given; and this, even if the policy was not delivered from the office, if it was only delayed, and there was evidence otherwise of a completion of the contract. And if the policy provides that there shall be no insurance until the actual payment of the premium, as this provision is inserted for the benefit of the insurer, it may be waived by him or his agent. And if a policy be delivered after the day of its date, it may take effect from its date, as if it had then been delivered, if this be the manifest intention of the parties.5 1 Ins. Co. of Penn. v. Smith, 3 Whart. 520, 529, per Rogers, J.; Patapsco Ins. Co. v. Smith, 6 Harris & J. 166. 2 Tyrie v. Fletcher, Cowp. 666, per Lord Mansfield; Taylor v. Lowell, 3 Mass. 331, 343; Emerigon, c. 3, s. 1, § 4, Meredith's ed., 52. See also post, Of the Return of Premium. Power v. Butcher, 10 B. & C. 329. In Kohne v. Ins. Co. of North America, 1 Wash. C. C. 93, which was an action of trover for a policy of insurance, the plaintiff's agents had settled the terms of insurance with the president of the insurance company, but had left the of fice before the policy was filled up. It was filled up a few hours afterwards, and the president gave notice of this to the agent, mentioning at the same time that information had been received that the ship had been captured and carried into Halifax. Both parties were ignorant of the loss when the policy was executed. The agent afterwards called to deliver the premium note and receive the policy, but the company refused to deliver it. Mr. Justice Washington charged the jury that the agreement of insurance was not inchoate, but perfected. The plaintiff recovered. See Warren v. Ocean Ins. Co., 16 Maine, 439; Loring v. Proctor, 26 Id. 18; Blanchard v. Waite, 28 Id. 51; Bragdon v. Appleton Mut. F. Ins. Co., 42 Id. 259; and cases ante, p. 34, n. 4; p. 35, n. 1. Goit v. National Protection Ins. Co., 25 Barb. 189. The general rule is, that if a policy insures the interest of one person only, no other person can show that it was also intended to cover his interest; but it is not regarded as insuring the interest of one person only, if the policy contains the general phrase "for all whom it may concern,"2 or some other expression indicating that the assured acts as agent or trustee for another, in which case such other person may prove his interest. This phrase, however, Co., 23 Wend. 18. This was an insurance against fire. On the day of the date of the policy, a valid agreement for insurance had been entered into with the company's agent and the premium paid. The policy was delivered after the loss. 1 Turner v. Burrows, 5 Wend. 541; Holmes v. United Ins. Co., 2 Johns. Cas. 329; Newson v. Douglass, 7 Harris & J. 417; Wise v. St. Louis Mar. Ins. Co., 23 Mo. 80. An insurance by one partner in his own name, without general words, covers his interest only. Graves v. Boston Marine Ins. Co., 2 Cranch, 419; Pearson v. Lord, 6 Mass. 81; Turner v. Burrows, 5 Wend. 541. See also Bell v. Ansley, 16 East, 141; Hibbert v. Martin, 1 Camp. 538; Cohen v. Hannam, 5 Taunt. 101; Lawrence v. Sebor, 2 Caines, 203. So also in the case of part-owners, Robinson v. Gleadow, 2 Bing. N. C. 156; Bell v. Humphries, 2 Stark. 345; Foster v. U. S. Ins. Co., 11 Pick. 85; Dumas v. Jones, 4 Mass. 647; Finney v. Bedford Com. Ins. Co., 8 Met. 348; Murray v. Columbian Ins. Co., 11 Johns. 302; Garrell v. Hanna, 5 Harris & J. 412. * Blank insurances were formerly in use in England. This practice was abolished by 25 Geo. 3, c. 44, which statute directed that the name of the party interested in the insurance, or that of his agent, should appear in the policy. It was construed to require in all cases the insertion of the names of the persons interested, or of the names of the agents, as agents for the persons interested, who were in that case also required to be named in the policy. Pray v. Edie, 1 T. R. 313; Cox v. Parry, 1 T. R. 464; Wilton v. Reaston, Park on Ins. 19. This statute was repealed and superseded by 28 Geo. 3, c. 56, which is now in force. The construction given to this statute is very liberal. Wolff v. Horncastle, 1 B. & P. 316; Bell v. Gilson, Id. 345. All that is necessary to answer its requirements is, that the name of the party effecting the policy be inserted. This person in England is usually an insurance broker. It is not necessary that he should appear to sign as agent. De Vignier v. Swanson, 1 B. & P. 346, n. See also Hibbert v. Martin, 1 Camp. 538; Hagedorn v. Oliverson, 2 M. & S. 485. De Forest v. Fulton F. Ins. Co., 1 Hall, 84; Waters v. Monarch Life and Fire Ins. Co., 5 Ellis & B. 870, 34 Eng. L. & Eq. 116. In Sunderland Marine Ins. Co. v. Kearney, 16 Q. B. 925, 6 Eng. L. & Eq. 312, the policy stated that Kearney had represented to the company that he was interested in, or duly authorized as owner, agent, or otherwise, to make the assurance. was held that an action might be brought on the policy by all the parties interested. The following citation will show the ground on which the decision proceeded: "It seems to us that they covenanted to pay to the persons who were interested in that subject-matter and for It applies only to those who were contemplated at the time of the insurance, and who then had an insurable interest in the subjectmatter.1 But it is not necessary that a specific party be intended, if the intention is to cover generally those who have insurable interests; for the intention of the insured, or of the named party, determines the application of this clause. And if A effects insurance in his own name, a payment of a loss to him will exonerate the underwriters.2 It has been contended that a mutual-insurance company cannot insure parties who have no interest in the subject-matter insured, and cover the interest of the owners under the general phrase," for whom it may concern," on the ground that such insured so as to cover the interest of a third person." whom the policy was effected; certum est quod certum reddi potest. A designation which cannot be mistaken is, for this purpose, as good as the actual name of the individual. The company engaged to make good all losses and damages which might happen to the subjectmatter of the said policy in respect of three hundred pounds assured. To whom were they to make good? Necessarily to the parties interested in the subject-matter who were damnified by the loss. These parties were the assured, and accordingly the stipulations of the policy by the company are with the assured." In Duncan v. Sun Ins. Co., 12 La. Ann. 486, the general rule was thus stated by the court: "If, upon a general survey of the provisions of the policy and the circumstances under which it was procured, it appears that the intention of the company was to insure for the benefit of any person in interest, although not named, the common interest of the parties shall not be defeated for the want of technical or even customary phrases. If, on the other hand, the most natural construction of the policy is that the party named as assured only sought to protect his own interest, the contract is not to be extend Routh v. Thompson, 11 East, 428; Bauduy v. Union Ins. Co., 2 Wash. C. C. 391; Catlett v. Pacific Ins. Co., 1 Paine, C. C. 594; Haynes v. Rowe, 40 Maine, 181; Protection Ins. Co. v. Wilson, 6 Ohio State, 553; Seamans v. Loring, 1 Mason, 127; Lambeth v. Western F. & Mar. Ins. Co., 11 Rob. La. 82; Alliance Mar. Assurance Co. v. Louisiana State Ins. Co., 8 La. 1, 11; Frierson v. Brenham, 5 La. Ann. 540. In Newson v. Douglass, 7 Harris & J. 417, 450, Buchanan, C. J., said: "Whom it may concern' is a technical phrase, common to policies of insurance, and is understood to mean, not any and everybody who may chance to have an interest in the thing insured, but such only as are in the contemplation of the contract. Such a policy supposes an agency, and, proceeding upon that ground, looks only to the principal in whose behalf, or on whose account, the agent moves in the transaction; and he, for whose benefit the insurance is procured, is the person in the contemplation of the contract, is he whom it alone concerns." 2 Hermann v. La. State Ins. Co., 7 La. 502. |