
    Smith vs. The Saratoga County Mutual Fire Insurance Company.
    In an action against “ The Saratoga County Mutual Fire Insurance Company,” (Laws of 1834, p. 530,) on a policy which, in terms, was to become void if assigned without the consent of the company in writing, it appeared that one of the by-laws of the company was as follows: “ When any buildings are mortgaged at (he time they are insured, the mortgagee may have the policy assigned to him on his signing the premium note, or giving security for the payment of the same,” and, on his doing so, any agent &c. “ shall be authorized to give the assent of the company to said assignment,” &c. It further appeared that, the buildings covered by the policy being under mortgage when it was applied for, the plaintiff stated this fact in his written application, adding, that he wished an assignment to the mortgagee. Held, that the act of issuing the policy could not be deemed a consent in writing to the proposed assignment; and this, though the policy contained an express reference to the application.
    Though by an assignment in such case, without the consent of the company, the policy is forfeited, yet the assured remains liable to contribute to all losses which happened while the policy was in force, though the assessment be not made till afterwards.
    Whether, under the charter of this company, he be not liable to contribute to all losses which may happen during the term for which he was originally insured, though he forfeit his policy before, quere.
    
    Where the company, with knowledge that a policy had been forfeited by assign, ment, assessed the assured on account of losses which occurred before the assignment, and collected the assessment; held, that this did not revive the policy. Even had the assessment been on account of losses which happened after the assignment, the result would have been the same; for the policy being void, not voidable simply, no mere collateral act of the company, though in affirmance of it, could revive it. Per Bronson, J.
    If a landlord, after notice of an act or omission of Iris tenant giving only a right of re-entry, do something by which he plainly affirms the continuance of the lease, it will amount to a waiver of his right. Per Bronson, J.
    Otherwise, where the act or omission of the tenant renders the lease absolutely void. Per Bronson, J.
    On a second trial of this action, (see 1 Hill, 497,) before Gridley, C. Judge, the by-laws of the company were given in evidence, which provide, among other things, that “ when buildings are mortgaged at the time they are insured, the mortgagee may have the policy assigned to him on Ms signing the 
      
      premium note, or giving security for the payment of the same ; and any agent, director, or the secretary, when application shall be made to him, shall be authorized, upon said applicant’s signing the said note or giving security as aforesaid, to give the assent of the company to said assignment; which assent and assignment, or a true certificate thereof, shall be forwarded to the secretary, who shall enter the same on the record of said policy.” Notice of the assignment of the policy to Williams was given to an agent of the company in the county of Oswego, where -the property insured was situated, in the summer of 1838, but nothing was done by the assignee. It appeared that the secretary of the company knew of the assignment as early as June, 1839. Since this suit was commenced, two assessments have been made by the company on the plaintiff’s premium note, one of which was paid by the plaintiff in March, 1840, and the other in September, 1841. The premium note bore even date with the policy, and by it the plaintiff promised to pay the company $288, ££ in such portions and at such time or times as the directors of said company may, agreeably to their act of incorporation, require.” In addition to the questions made on the former trial, the plaintiff insisted that, by making and collecting the assessments upon the premium note after notice of the assignment, the defendants had elected to consider the policy valid, and had waived the forfeiture for assigning the policy without the consent in writing of the company. It was further insisted that, as the policy referred to the application for insurance, the defendants must be demed to have consented to the assignment, by issuing the policy; for the application expressly informed the company that an assignment was desired. (See 1 Hill, 497.) The only reference from the policy to the application followed immediately after the description of the property, and was in these words—££ reference being had to an application of said John B. Smith for a more particular description and as forming part of this policy.” The judge decided that the plaintiff could not recover, to which he excepted. Verdict for the defendants. The plaintiff now moved for a new trial on a bill of exceptions.
    
      S. Beardsley, for the plaintiff.
    D. Wright dr N. Hill, Jr. for the defendants.
   By the Court, Bronson, J.

I still adhere to the opinion already expressed, (1 Hill, 497,) that it is the policy or contract of insurance, and not the subject insured, which the parties have declared not assignable. It is undoubtedly true that “ the interest of the assured,” when the words are used without any qualification, usually means his interest in the property or thing insured. But here the parties have explicitly declared that they mean something else—“ the interest of the assured in this policy is not assignable.”

It is now said that, as the plaintiff in his written application for insurance expressed the wish- to assign, and as the policy was subsequently issued referring to the application, the company has, in effect, consented in writing—that is, by the policy—■ to an assignment. But the language of the policy is, not that you may, but that you shall not assign without the consent of the company. The most that can fairly be inferred from the issuing of the policy with the knowledge that the plaintiff wished to assign is, that the defendants were ready to consent to an assignment to the mortgagee on the terms mentioned in their by-laws; that is, on his signing the premium note, or giving security for the payment of the same.” Before the loss happened, the mortgagee did not think proper to take on himself the burden of the contract by signing the premium note, and he cannot complain if the defendants now insist that the contract is at an end.

The remaining argument for the plaintiff presents a question which was not before in the case. It is said that the defendants, by making and collecting assessments upon the premium note after they had notice of the assignment of the policy, have waived the forfeiture, and affirmed the continuance of the contract. And this is likened to the case where a landlord, after notice of some act or omission by his tenant which gives a right of re-entry, receives or distrains for the subsequently accruing rent, or does some other act by which he plainly affirms the continuance of the lease. This is held to be a waiver of the forfeiture. But this doctrine only applies where the act or omission of the tenant renders the lease voidable, and not where it is declared absolutely void on the happening of the particular event. The distinction is between cases where the landlord may put an end to the lease by an entry for the wrong done, and those where the wrong terminates the lease without any act on the part of the landlord. In the former case, the landlord may waive the forfeiture by any act which affirms the continuance of the tenancy ; but in the latter, the lease being ipso facto void is incapable of confirmation. (Pennant’s case, 3 Co. 64, third resolution ; Finch v. Throckmorton, Cro. Eliz. 221 ; Mulcarry v. Eyres, Cro. Car. 511 ; Anon., 3 Salk. 4. And see Co. Litt. 295, b. ; Rickman v. Garth, Cro. Jac. 173 ; Jones v. Verney, Willes’ Rep. 169, 176, 177 ; Jenkins v. Church, Cowp. 482 ; Doe v. Watts, 7 T. R. 79 ; Doe v. Rees, 4 Bing. N. C. 384 ; Goodwright v. Davids, Cowp. 803.) How in this case the provision is, that on assigning without consent “ this policy shall thenceforth be void and of no effect A The parties have in the strongest terms declared that the policy shall immediately, and without any act on the part of the company, become absolutely void; and it is difficult to see how any thing short of a new creation could impart vitality to this dead body.

We are also referred to cases where it has been held that the contract of an infant may be confirmed after he attains his majority. But with very few exceptions the contracts of infants are only voidable—not absolutely void ; and wherever the contract is good or bad at the election of the party, there is no difficulty in seeing that it may be ratified and confirmed.

But it is unnecessary to put this case upon the ground that the forfeiture could not be waived. It does not appear that the assessments which the plaintiff has been required to pay on his premium note, were made on account of losses which have happened since the policy was assigned j, and consequently the defendants have not done an act which necessarily affirms the continuance of the policy. There is, perhaps, room for question whether the plaintiff did not continue liable upon his premium note to contribute to all losses which happened within the term for which he was originally insured, although the policy became void before the term ended. (See premium, note, ante, p. 509, in connection with Sess. L. of 1834, p. 530, ^2, 4, 7, 8,10 ; Herkimer M. & H. Company v. Small, 21 Wend. 275.) But however that may be, there can be no doubt that the plaintiff was liable to contribute to all losses which happened while the policy was in force, although the assessment should not be made until afterwards. He could not, by forfeiting the policy, discharge the existing liability to contribute towards losses which had already happened.-

The case then comes to this. The defendants proved, that before the property was destroyed, the plaintiff had done an act which put an end to the policy- In answer to this, the plaintiff undertook to show that the forfeiture had been waived. The burden lay upon him, and he was bound to make out a plain case. It was not enough to bring the matter into doubt. It was necessary to show that the company had done an act which plainly affirmed the continuance of the policy. An assessment for losses did not prove it, without showing that the losses happened after the forfeiture accrued, and there was no attempt to establish that fact. The judge was therefore right in holding that the plaintiff could not recover.

Nelson, Ch. J. and Cowen, J. being members of the company, gave no opinion.

New trial denied.  