SUPREME COURT.

Nelson Evening Mail, Volume IX, Issue 208, 2 September 1874, Page 2

SUPREME COURT.

i y I -N BAN CO . [Before his Honor Mr. Justices Richmond.] Wymond v. National Fire and Marine Insurance Company. '■ In tbis case some questions of great interest to Insurance Companies and to the public are decided upon demurrer raised by tbe plaintiff to one of tbe defendants' pleas. The plaintiff, by his declaration, claimed £400 upon an ordinary policy of insurance effected with the defendants upon furniture in plaintiff's shop and house in Bridge-street, which bad been destroyed by fire. To tbis defendants pleaded, amongst other defences, that in fact an interim policy only having been issued the plaintiff wrote to the defendants' agents, Messrs W. Stavert and Co., informing them tbat the furniture had been removed to hia house iv Trafalgarstreet South, and requesting tbem to make the necessary endorsements on the policy. Thai- ..lhe defendants, by their agents, agreed to this, and the parties thereupon mutually agreed that the contract should be varied, co that tbe interim policy and policy when issued should cover the furniture whilst in Trafalgar-street, and cease to cover it whilst in Bridgestreet, so that tbe premiums oharged should thereaffer be largely reduced. That the defendants thereafter caused their common seal to be affixed to the po!i<Jy in ignorance of the fresh agreement and without intending to disaffirm it, and that they now hold tbe policy so seated; and" have never issued it to, the plaintiff. To this plea the plaintiffs demurred, on the grounds that the plea admits the policy and the destruction of the goods; whilst within the risk mentioned in it, but seeks to avoid the liability of the defendants by setting up a parol contract varying the terms of tbe policy otherwise than io the manner provided by it; and also tbat it was a condition precedent to the examination of the defendants from the risk mentioned in the policy that they should have consented to its alteration by indorsement on the policy, which they had not done, so that their liability remained unaltered. > The case was argued on Friday, the 1 28th August, by Mr Pitt for the plainT tiff, and Mr Fell for the defendants, when after a long hearing, his Honor took time to consider the judgment, which has since been delivered in writing through the Registrar, and is as follows: — In my opinion this demurrer must be overruled on the simple grounds that the defendants were, by the assent of their agents to tbe alterations of the risk, conclusively bound, and tbey being so bound, tbe plaintiff also was and is bound by his own letter of the 4th of February. Whether the consent of the agents of the Company, as stated in paragraph 7 of the plea, is or is not to be taken to have been expressed in writing may be a matter of some doubt. (See Cornish v. Bank of New South Wales, Maca6sey 181; Young v. Austin, Law j Reports 4C. P., 553.) I assume it lo have been verbal ouly. Yet, I am of opinion that had the loss occurred in Trafalgar-street, the insurers could not, in a Court of Equiry, at least have been allowed to take advantage of this defect, if such it be, nor to raise the objection that no endorsement bad been made on tbe policy, but tbat in spite of any objection on either of these grounds they would have been liable on the policy or interim policy, the risk insured having been by what took place between the parties effectually altered. If the furniture had actually : been removed, either at the time when Mr Wymond's letter was written, or afterwards, that would, I think, in equity have debarred tbe Company from raising either of these defences; but the argument which shows that the Insurance Company was bound by what took place proves blbo that tbe plaintiff was bound. It is impossible to contend that the insurance covered tbe furniture in whichever of the two streets the plaintiff elected to place it. The situation of tbe articles insured was obviously one essential term of the contract. It was the plaintiff's doing to change tbe risk from Bridge-street to Trafalgar-street, and he must abide by bis own act. Judgment will therefore be for the defendants. ■ -•.:-■ ■■"■'