Opinion
December, 1911.
Goldstein Goldstein, for appellant.
Leo Levy (C. Arthur Levy, of counsel), for respondent.
The fire insurance policy upon which this suit was brought was in the hands of a broker at the time of the fire which damaged the property claimed to have been insured. The question is whether the policy had been issued and was an existent contract.
The plaintiff had never requested the broker or the defendant company to issue the policy in question, which was a renewal of a former policy which had been issued to the plaintiff upon his request.
At the time the original policy expired, a renewal policy was written by the defendant and sent to the broker who had obtained the original policy. This broker had not been requested by the plaintiff or on the plaintiff's behalf to procure such a renewal and had not sent the policy to the plaintiff or informed the plaintiff that he had it. While the policy was thus in the possession of the broker, the fire in question occurred, and the broker subsequently returned the policy to the defendant.
If any application, direct or indirect, express or implied, had been made by the plaintiff for the policy, then the fact that it had been written by the company and delivered to the broker would be an acceptance of the application and constitute a contract; but the circumstances proven in this case show only an offer on the part of the defendant company which was not accepted by the plaintiff prior to the fire and which, of course, could not be deemed still open for acceptance after the fire occurred.
The judgment should be affirmed, with costs.
LEHMAN and PENDLETON, JJ., concur.
Judgment affirmed, with costs.