
    Samuel J. Singer and Others, Respondents, v. The National Fire Insurance Company of Hartford, Connecticut, Appellant.
    Second Department,
    January 10, 1913.
    Appeal —theory at trial controlling—insurance — principal and agent — when delivery of policy to agent delivery to principal—object of notice of loss — admissions that nothing exists which would vitiate policy — defense that policy was not in force at time of loss — communication between insured and his agent repudiating policy not known to insurer—evidence — communications between principal and agent.
    On an appeal a cause will be determined upon the theory on which it was presented at trial.
    Where insurance brokers applied for a fire insurance policy on behalf of their principal a delivery of the policy by the insurer to the brokers is a delivery to the insured.
    A condition in a policy of fire insurance that the insurer shall be immediately notified of a fire is for its benefit, in order that it may investigate the causes. Hence, where in an action on such policy it is stipulated by the insurer that none of the causes exist which would vitiate the policy, it cannot resist a recovery upon the ground that the insurer failed to prove that notice of loss was given. Especially is this true where the defendant contends that there was no valid policy.
    The fact that the insured through an employee wrote to insurance brokers acting for them in procuring a policy, stating under a mistake of fact that the policy delivered had not been .ordered, does not relieve the insurer from liability when it knew nothing of the correspondence and took no action towards canceling the policy before the loss occurred.
    Where the insured having in some way obtained possession of such letters introduced them in evidence, it was not error to allow an employee of the insured to testify that in a conversation with the agents of the insured it was discovered that the policy delivered was one which had been actually ordered, even though the insurer was not present at the conversation.
    Where part of a communication is placed in evidence the party against whom it is used has a right to have the entire matter brought out.
    Appeal by the defendant, The National Fire Insurance Company of Hartford, Connecticut, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on ■ the 22d day of March, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Lewis H. Freedman [Albert Stickney with him on the brief], for the appellant.
    
      Charles G. F. Wahle, for the respondents.
   Woodward, J.:

The plaintiffs, as copartners, bring this action to recover an alleged loss under a policy of fire insurance issued to them by the defendant, and the defendant urges that it is not liable under such policy, on the ground that it never became operative, the plaintiffs having refused to accept the same. This was the issue tried and submitted to the jury, and while other matters are urged upon this appeal, we áre of opinion that the case must be determined here upon the theory on which it was presented before the trial court. It was stipulated on the part of the defendant that Messrs. Lustig & Marx, insurance brokers, on behalf of the plaintiffs, applied on or about the 14th day of October, 1909, to the National Fire Insurance Company of Hartford, Conn., defendant herein, for a policy of fire insurance insuring S. J. Singer & Sons, plaintiffs herein, and covering certain property in premises No. 113 Market street, Newark, N. J., and that in response to such application the National Fire Insurance Company of Hartford, Conn., defendant herein, executed the policy in suit, and that paid policy was countersigned by Messrs. Lowy & Berger, duly authorized agents of the defendant company at Newark, N. J., and delivered to Messrs. Lustig & Marx, and mailed by Lustig & Marx to the plaintiffs on or about November 16, 1909; that a fire occurred in the premises of the plaintiffs at No. 113 Market street, Newark, N. J., on the 2d day of December, 1909, by which certain of said property mentioned in the complaint was damaged and destroyed to the extent of $4,652.20; and that the. said fire did not happen from any of the causes excepted in the policy, and that the policy so made and delivered to Lustig & Marx had never been returned to the defendant.

There does not appear to be any question that Lustig .& Marx, insurance brokers, were the agents of the plaintiffs in this transaction, and that a delivery to these agents, and an admission that the policy was, by them, handed on to the plaintiffs, would constitute a good delivery of the policy on the part of the defendant, with an intent to become bound by its terms and conditions, and involving an obligation on the part of the plaintiffs to pay the premiums on such policy, while the stipulations in reference to the happening of the fire, the amount of the loss, and that the fire was not due to any of the excepted causes, would seem to constitute a waiver of a strict performance of the conditions of the policy, assuming that the rather equivocal pleading on the part of the defendant raised an issue. The object of a condition in a policy that there shall be an immediate notification of the fire is for the benefit of the insurer, that it may investigate the causes, and where upon the trial it is stipulated that none of the causes exist which would vitiate the policy, it is difficult to conceive of the defend . ant being aggrieved by the failure to show that such notice was given, especially-where it insists from the start that it is not liable because there was no valid policy in being at the time of the fire. If there was no policy, then the plaintiffs owed no duty to the defendant, and the defendant having repudiated the policy, is not in a position to say that the plaintiffs have sacrificed their rights because of a failure to perform the conditions of a policy which the defendant says does not exist, and in the case now before us we are of the opinion that the pleadings do not squarely raise the issue now sought to be urged.

What, then, is the. foundation of the claim on the part of the defendant that this policy, concededly made, executed and delivered to the agents of the plaintiffs, was not in force at the time of the fire? The contention is that the plaintiffs refused to accept the policy in suit, and this contention is based upon two letters written by an employee of the plaintiffs and addressed to Messrs. Lustig & Marx, who, it will be remembered, were not the agents or representatives of the defendant, but were the brokers engaged by the plaintiffs to procure the insurance. The first letter (Defendant’s Exhibit 1) bears date of November 17, 1909, is addressed to Messrs. Lustig & Marx, and is stipulated by the plaintiffs to have been received by that firm. This letter reads.: “We herewith return you bill and policies. We do not know who authorized you to issue same. Our insurance bn our store at No. 113 Market street, was placed before the store was opened.”

To this letter the firm of Lustig & Marx replied, acknowledging the receipt of the plaintiffs’ letter of the seventeenth, and saying: “We beg to say that the policies covering your stock in the Newark store, to the amount of $3, 500.00, were issued at the request of your Mr. Myer Singer, before the store was opened. Kindly advise us what to do in this matter.” To the above the plaintiffs, through an employee,' wrote, saying: “Answering your letter of Nov. 18th, beg to state that our Mr. Myer Singer has no. knowledge of having placed insurance with you to cover our branch store. There must be some mistake in the matter. Our insurance was placed, as we stated in a previous letter, before the store was opened. Otherwise we should have been glad to have given you the business.” The defendant knew nothing of this correspondence and took no action looking toward the cancellation of the policy in question before the fire on the 2d day of December, 1909; the communications were entirely between the plaintiffs " and their broker, and, except for the fact that the defendant in some unexplained manner got possession of these letters, there would be no possible foundation for the defense now urged. With, these letters in evidence, the plaintiffs called witnesses who testified to communications passing between the plaintiffs and their brokers in reference to this policy, from which it was lnade to appear that Myer Singer was the active manager of various stores owned by the plaintiffs, and that he had arranged for the policy in question some time in September, before the opening of the Newark store, but that the policy was not delivered until some tune in November, and that he assumed in dealing with the matter, as shown in the correspondence, that the policy then offered was additional insurance, and it wras this additional insurance which he supposed he was rejecting; that he subsequently communicated through one of the employees of the firm with the brokers, and it was then understood and agreed that if the policy was the one which had been contracted for in September, the plaintiffs wanted it, and that it was in fact held in the custody of the brokers, who assured the plaintiffs through the employee that when the premiums were due the plaintiffs would be expected to pay the same. Objection is urged to this line of testimony, showing the conversation between the brokers and the employee of the plaintiffs on the ground that the defendant was not present at such conversations and that it is hearsay, but we are of the opinion that the defendant, having opened the door by the introduction of letters passing between the plaintiffs and a third party, in no wise related to the defendant, is not now in a position to object to testimony tending to explain this correspondence. It is a rule of general application that where a part of a communication is placed in evidence the party against whom it is used has a right to have the entire matter brought out, and that rule is. applicable here, where only a part of the communication between the brokers and the plaintiffs is in writing.

The judgment and order appealed from should be affirmed, with costs.

Jenks, P. J., Hirschberg, Burr and Rich, JJ., concurred.

Judgment and order affirmed, with costs.  