
    INSURANCE.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    National Fire Ins. Co. of Hartford, Conn. v. John Kneidel, Jr.
    "WANT 01’ ENDORSEMENT OF CHATTEL MOliTGAOE INCUMBRANCE ON PERSONAL PROPERTY Defeats Recovery on Policy Making it a Prerequisite.
    A condition in a fire insurance policy on personal property that it shall he void if the property is incumbered by a chattel mortgage without in-dorsement thereon is reasonable and binding on insured, and in the absence of evidence that the omission of such endorsement was the result of fraud or mistake, no recovery can be had thereon; notwithstanding an allegation and proof that insured, when the policy was taken out, had informed the agent of such incumbrance.
    [For other cases in point, see 5 Cyc. Dig., “Insurance,” §§ 582-593. — Ed.]
    ERROR to Cincinnati superior court.
    W. T. Porter, for plaintiff in error.
    M. C. Lykins, C. D. Robertson and Burch, Peters & Matthews, for defendant in error:
    Cited and commented upon the following authorities: Eureka Fire & Mar. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57]; Durbin v. Fisk, 16 Ohio St. 533; Kehm v. Insurance Co. 12 Dec. 227; O’Brien v. Insurance Co. 134 N. Y; 28 [31 N. E. Rep. 265]; Walsh v. Insurance Co. 73 N. Y. 5; Marvin v. Insurance Co. 85 N. Y. 278 [39 Am. Rep. 657]; Hickey v. Insurance Go. 11 Circ. Dee. 135 ( 20 R. 385) ; Union Gent. Life Ins. Go. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906]; Smith v. Insurance Go. 19 Ohio St. 287; Hammel v. Insurance Co. 24 •O. C. G. 101; Keith v. Insurance Go. 117 Wis. 531 [94 N. W. Rep. 295]; Northern Assur. Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133; 46 L. Ed. 213] ; Glemments v. Insurance Co. 153 Fed. Rep. 237; Webster v. Insurance Co. 53 Ohio St. 558 [42 N. E. Rep. 546; 30 L. R. A. 719; 53 Am. St. Rep. 658] ; Sun Fire Office v. Clark, 53 Ohio St. ' 414 [42 N. E. Rep. 248; 38 L. R. A. 562]; Stevens v. Insurance Go. 81 Wis. 335 [51 N. W. Rep. 555; 29 Am. St. Rep. 905] ; Fries-Breslin Co. v. Insurance Co. 36 Ins. L. J. 804; National Surety Co. v. Long, 125 Ped. Rep. 887 [60 O. C. A. 623] ; Smith v. Insurance Co. 118 N. T. 518 ![23 N. E. Rep. 883]; Germania Fire Ins. Co. v. Werner, 76 Ohio St. .543 [81 N. E. Rep. 980; 12 L. R. A. (N. S.) 456; 118 Am. St. Rep. 891] ; Germania Fire Ins. Co. v. Schild, 69 Ohio St. 136 [68 N. E. Rep. 706; 100 Am. St. Rep. 663]; Farmers Ins. Co. v. Wells, 42 Ohio St. 519; Travelers Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760].
   SWING, J.

This action is here on error to the judgment of the superior court. Kneidel brought this action in that court against the National Fire Insurance Company on a fire insurance policy, and recovered a judgment. To the petition is attached a copy of the policy of insurance sued on. The policy contained these provisions:

“If the subject of insurance be personal property and become encumbered by a chattel mortgage the policy shall be void. * * * This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto and no officer or agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreements, may be endorsed hereon or added hereto and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under the policy exist or be claimed by the insured unless so written or attached hereto.”

The defendant filed an answer alleging that at the time the policy was issued there was a chattel mortgage on the property covered by the policy and that it was not endorsed on the policy. Plaintiff filed a reply admitting tbe existence of tbe chattel mortgage, and that it was ■not endorsed on tbe policy, but alleged that at tbe time tbe policy was taken out that plaintiff bad informed tbe agent- of tbe company that there was a chattel mortgage on tbe property, and on tbe trial tbe plaintiff introduced evidence tending to prove this allegation.

It is settled law that tbe conditions contained in this policy are reasonable and are binding on tbe parties when made. So that tbe case presented by tbe record is one where plaintiff sues on a policy which ■contains a provision that if tbe property insured is mortgaged, it is to be void, unless tbe fact of tbe mortgage is endorsed on tbe policy. There was a chattel mortgage on tbe property, and it was not endorsed on tbe policy. By tbe express terms of tbe policy such a state of facts rendered tbe policy void. No claim was made, and no evidence was introduced tending to show that tbe endorsement provided for in tbe policy was omitted by tbe fraud or mistake of tbe defendant company, or that the company agreed to place such an endorsement on tbe policy. It is not sought to reform tbe policy, but a recovery is sought on tbe terms of tbe policy, and it is admitted that tbe terms of tbe policy are reasonable and binding on the parties. By tbe terms of tbe policy it was to be void if there was a chattel mortgage on tbe property insured, unless tbe fact was endorsed on tbe policy, and it is admitted that there was a chattel mortgage on tbe property and that was not endorsed on the policy. It follows that tbe plaintiff, Kneidel, can not recover.

Judgment reversed, and tbe facts being admitted, judgment will be entered for defendant.

Giffen and Smith, JJ., concur.  