
    Frank Landers, Resp’t, v. Sidney Cooper, Rec’r of Watertown Fire Ins. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    1. Insurance (Pire) — Description in policy decisive.
    If the contract of insurance relates to one definite and distinct subject, it cannot be turned intd-a contract for the insurance of another and different subject in an action to enforce the contract on proof that the agent of the company by mistake described the wrong property in his application, even .though the insured may have intended to procure the insurance on the other property which was burned.
    2. Same — Prior insurance.
    The insured to avoid the effect of a condition that the policy should be void if the insured has or makes other insurance not indorsed, known or consented to by the company, is bound to show as matter of fact that the agent knew of the outstanding insurance.
    Appeal from judgment of general term, fifth, department, affirming judgment for plaintiff entered upon order.
    
      A. H. Sawyer, for app’lt; A. D. Wales, for resp’t.
    
      
       Reversing 6 N. Y. State Rep., 168.
    
   Andrews, J.

Two defenses are relied upon, first, that the building burned was not the building mentioned in the application and survey, and insured by the policy, and second, that when the policy in question was issued there was a prior insurance on the building destroyed in the dens Falls Insurance Company, not consented to by the Watertown Fire Insurance Company, whereby, by the terms of the policy sued upon, it became void. The defendant, to establish the first defense, relied upon the following facts: (1) The policy, by its language, insures Landers in the sum of $800 “ on the property described in the application and survey bearing even date therewith, and which is hereby referred to as forming a part of the policy, viz., $800 on his (Landers’) two-story dwelling house, Afton, N. Y.” (2) The application on which the policy was issued describes the property to which the application relates as situated in Afton, N. Y., and being a tenant house, two stories high, 16x24, with wing 16x24,. with two chimneys, and located sixty feet south of the dwelling ' house of Landers (the applicant), and sixty feet west of a barn. This is an accurate description of the tenant house, near the dwelling house of Landers, with the exception that its height is one and a half stories, and not two stories. (3) On the back of the application is a survey and diagram showing the dwelling house, the tenant house, consisting of a main part and wing, and the barn, their relative positions, and under the tenant house is the word “risk.” (4) The mill house (the house burned) was situated half a mile from the dwelling house of Landers, and was also a tenant house. It was a building two stories high, 20x30 feet in size, without any wing and having but. one chimney. It was distant at the nearest part thirty-seven feet from a steam mill of Landers. It corresponded in no respect with the building described in the application and survey, with the single exception of height. (5) The application and survey were forwarded to Cannon, the agent, to the office of the company, at Watertown, and the policy was issued thereon and mailed by the company to Landers.

The company had no information as to the risk, or of any negotiations between Cannon and Landers other than was disclosed by the application. ^

The plaintiff, notwithstanding this apparently conclusive evidence that the house insured was the tenant house, and not the mill house, has recovered for the loss by fire of the mill house, upon certain extrinsic proof submitted to the jury. It was shown that Landers, prior to the issuing of the policy in question, held two policies of insurance in the Grlens Falls Insurance Company, of $800 each, one on the tenant house (near his dwelling house), expiring July 1, 1873, and one on the mill house, expiring May 1, 1874, each for three years, at the same rate of premium. The local agent of the dens Falls Insurance Company, in the spring or summer of 1873, removed and sold out his business to Cannon, the local agent of the defendant’s company, who transferred to him, among other things, an “expiration book,” in which the two Solides to Landers were entered, one entry being “ Thomas Laners, dens Falls; number of policy, 197; property, Afton, $800; premium, $4.80; expiring 1st of July, 1873,” and the other, “ Thomas Landers, dens Falls Insurance Company, number 351 ; farm property in Afton, $800; premium, $4.80; rate, 60c.; expiring the 1st of May, 1874.” It will be noticed that the entries do not show on their face to what particular building they severally apply. The plaintiff’s version of the circumstances which preceded the issuing of the policy in question is, substantially, that the agent, Cannon, in the spring of 1873, met Landers and informed him that the policy on the mill house was about expiring, and asked him if he did not want it renewed, stating that the former agent of the dens Falls Company had left and he (Cannon) had his papers and was doing his business, and that he was the agent of the Watertown Fire Insurance Company, which was a good company, and solicited Landers to take a policy in that company, to which he finally consented.

The testimony of Landers to the point that the negotiation with Cannon related to a renewal of the policy on the mill house is corroborated, to some extent, by other members of his family.

The policy which expired in July, 1873, was the policy on the tenant house. The policy on the mill house did not expire until May, 1874. It was the policy of the tenant house which needed to be renewed, and not the policy on the mill house.' But Landers relied, as he claimed, on the assurance of Cannon that it was the policy on the mill house which would expire first, and thereupon authorized him to procure a new insurance upon that building policy. Within a short, time after the conclusion of the negotiation, Cannon made out the application and survey and signed the name of Landers to the application, and forwarded them to the defendant. The application and survey, as has been shown, related to the tenant house, and not to the mill house.

Cannon on the trial contradicted the testimony of Landers and his witnesses as to the fact that the negotiation between himself and Landers related to the mill house, and testified that the tenant house was pointed out by Landers as the one upon which the policy was about to expire, and that the proposition on his part to procure a new policy related to the tenant house, and not to the mill house.

Upon this state of facts, and the additional fact testified to by Landers that he did not authorize Cannon to sign any application, and that he had no knowledge of the application or survey until after the fire, the couz’t submitted to the jury to find whether the-application was authorized by Landers, and instructed them that if it was made without his authority or knowledge, and he did not know of the representations therein, they should disregard the application and survey, and, determine the case upon the point whether the negotiation between Landers and Cannon related to the mill house, and instructed them in substazzce that if they found that it did relate to the mill house, and not to the tenement house, the policy covered the mill house, and the plaintiff was entitled to recover.

The defendant, before the submission of the case to the jury, moved that the case should be dismissed on the grounds, among others, that the policy did not cover the mill house, but the tenant house, and also, that assuming that the policy covered the mill house, that there was a prior existing insurance thereon not consented to by the defendant.

We think the case was tried and submitted to the jury upon an erroneous view of the law. The action was brought distinctly and solely upon the policy of August 1, 1873, and to enforce the contract of insurance contained in the instrument The building burned was the mill house, and unless the policy was upon that, building the plaintiff did not establish the cause of action alleged in the complaint. The subject of the insurance is to be ascertained frozn the description in the policy and such extrinsic evidence as may be necessary to identify the property described. But extrinsic evidence which goes beyond the purpose of aiding in the interpretation of the written contract, and tends to show that the subject thereof was other and different from that described in the written instrument, that is say, in this case, that the building intended to be insured was not the building actually covered by the policy, while it might tend to establish a case for the reformation of the contract, would be inadmissible to sustain an action to enforce the contract as written, as though it applied to the building intended to be covered, bnt not described in the policy.

The policy in question was issued upon a written application and survey made by Cannon, the local agent of the company, in the name of Landers, and forwarded by the agent to the main office of the company. The company approved the application, and thereupon issued and mailed the policy to Landers. It must be assumed upon the finding of the jury that the negotiation between Cannon and Landers related to an insurance on the mill house, and not on the tenant house, and further -that the agent in making the written application and signing Landers’ name thereto, and in making the survey and diagram of the premises, acted without Landers’ authority, and that Landers had no knowledge •of the representations made by the agent to the company until after the fire. The evidence leaves no possible room for question that the company, when it issued the policy, intended to insure the tenant house, and not the mill house. Nor can there be any doubt that the policy describes the tenant house, and not the mill house as the subject insured. It is quite impossible to treat this policy as a contract insuring the mill house, if the application and survey are considered in ascertaining the subject of insurance. It is only by rejecting them that the subject is left in any possible doubt. This the trial court permitted the jury to do upon the theory that the representations in the application and diagram were the unauthorized acts of the agent, and were not. therefore binding upon Landers. In substance, the court permitted the jury to strike from the written part of the policy the clause referring to the application and survey, and to regard only the words, “ $800 on his (Landers) two-story dwelling house,” which describe with sufficient accuracy the mill house, and then to find that the policy was one upon the mill house, as the agent Cannon and Landers intended.

The trial court treated the case as analogous to those which hold (1) that a contract of insurance is not defeated by a misrepresentation as to some fact material to the risk, or made so by the terms of the contract contained in an application prepared by the agent in the name of the insured, but without his authority and upon which the company acted in issuing the policy. Benninghoff v. Agricultural Ins. Co., 93 N. Y., 496; Sprague v. Holland Purchase Ins. Co., 69 id., 128; Vilas y. N. Y. C. Ins. Co., 72 id., 590; Ames v. N. Y. Union Ins. Co., 14 id., 253.

(2). To the class of cases where the agent having been authorized by the insured to fill out the application in his name, misstated, by mistake or inadvertence, the information given by the insured, and thereby misled the company. Rowley v. Empire Ins. Co., 36 N. Y., 550; Baker v. The Home Life Ins. Co., 64 id., 648; Grattan v. Metropolitan Life Ins. Co., 92 id., 274; Bennett v. Agricultural Ins. Co., 106 id., 243; 8 N. Y. State Rep., 693; and (3) to the cases which hold that a company cannot insist upon a condition declaring the contract to be void if a certain fact or situation exists not represented to the company and indorsed. •on the policy, provided the company or its authorized agent knew the fact or situation relied upon to defeat the contract at the time the contract was made. Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434; Richmond v. Same, 79 id., 230; Short v. Home Ins. Co., 90 id., 16.

In none of these cases was there any question as to the subject of the insurance. In all of them it was conceded, that the policy-covered the building or property destroyed by the fire. The matters alleged in these cases as constituting a defense related to-some incident of the .contract, or to the performance of some condition collateral to the express object of the contract. In cases falling within the two classes of cases first mentioned, the fault was committed by the agent of the defendant, and it is held that, as between the company and the insured, the company should bear the loss. In cases'of the third class, it is held that it could not have been the intention that the policy should be defeated by reason of an omission to communicate facts known to the company when the contract was made, or the failure to have the written recognition of the company of their existence. The courts in these cases apply the doctrine of waiver or estoppel to prevent fraud or injustice.

But the principle which relieves the. party insured from responsibility for unauthorized representations made by the agent of the insurer in respect to some incident of the risk, and permits them to-be disregarded in an action to enforce the contract, has no application where the point in issue is as to the subject of the insurance, and the contract is explicit upon that point. If the contract of insurance relates to one definite and distinct subject, it cannot be turned into a contract for the insurance of another and different, subject, on proof that the agent of the company, by mistake, described the wrong property in his application. The agent’s authority here was to “ make surveys and take applications for insurance.” He had no authority to enter into contracts of insurance on behalf of the company. The company passed upon the applications and accepted or rejected them in its discretion.

In determining the question whether the policy issued covered the mill house or the tenant house, the papers on which the company acted were material evidence. In ascertaining to which subject the policy applied it is immaterial whether the application was made by the authority of the insured or not, or whether it was genuine or forged There must be a meeting of minds between the parties to-a contract before a contract is formed. If the facts show that the company intended to insure the tenant house, and the written contract applies to that house, the plaintiff cannot recover in this action, although he may have intended to procure an insurance on the mill house," and, by the agent’s fault, the application was made to refer to the tenant house. If there is any remedy against the company for the mistake or carelessness of the agent, it is not available in an action to enforce a contract relating to one subject, as if it were a contract relating to another subject. I am not aware of any principle in the law of estoppel which prevents the defendant from showing that the contract relates to the tenant house, or which justifies the court in excluding from the consideration of the jury, in the determination of the issue, the application and survey upon which the company acted, because made, without the authority of the insured, by the company’s agent.

We are of opinion that the defense that the policy was not upon tire mill house, but was upon the tenant house, was clearly established, and that, upon this ground, a non-suit should have been granted.

The second defense of prior insurance is also, we think, a barrier to a recovery. It is a condition of the policy that “if the insured shall have, or shall hereafter make any other insurance on the property hereby insured, not indorsed, known or consented to by this company, or its authorized agent, in writing, this policy shall be void.” This defense proceeds on the assumption that the policy was a contract insuring the mill house. It is conceded that Landers had an insurance on the mill house in the Grlens Falls Insurance Company for $800, existing when the policy now in question was issued, and which ran to May 1, 1874, and no indorsement of the prior insurance was made on the policy in question, nor is there any written consent to its existence by the Watertown Insurance Company, or its agent. This prima facie was a breach of the condition and rendered the policy of the latter company void. 86 K Y., 414.

The answer made is that Cannon knew of the prior policy. He knew that there was a policy on the mill house and also on the tenant house. But the strongest position for the plaintiff which the evidence justifies upon this point is, that Cannon believed, and so represented to Landers, that the policy on the mill house was the one expiring July 1, 1873, whereas it was the policy on the tenant house which expired at that date. The most that can be said is that the agent made a mistake as to the facts. But this was not equivalent to notice of an outstanding insurance, so as to charge the company. The plaintiff, to avoid the effect of the condition, was bound to show tliat, as matter of fact, the agent knew of the outstanding insurance. It was not sufficient, to reheve the plaintiff, that the agent was put upon inquiry, or might, by the exercise of diligence, have ascertained the truth. The insured,, who had procured the policies in the Grlens Falls Company, could not rely upon the assurance of the agent, himself making no investigation, and cast the burden of the agent’s mistake upon the Watertown Insurance Company. It was not the agent’s duty to ascertain the fact as to prior insurance, and his assumption that no such insurance existed did not bind his principal.

For the errors stated, the judgment should be reversed and a new trial granted.

All concur.  