Argued February 1, 1898
Decided March 1, 1898
Ernest Hall for appellant. Sidney H. Stuart for respondents.
The only question we are called upon to determine in this case is whether the knowledge of the defendant's agent that the plaintiffs intended to procure other insurance upon the property covered by the defendant's policy constituted a waiver of the provision therein prohibiting other insurance without the indorsement upon the policy of an agreement to that effect. The courts below have so held. This conclusion was based upon the theory that as the defendant's agent knew that the plaintiffs intended to procure other insurance when the policy in suit was issued, and delivered it with that knowledge, it constituted a waiver of its provision as to other insurance. Manifestly, this theory cannot be sustained. It is well settled in this state that where an insurance company issues a policy, with full knowledge of facts which would render it void in its inception if its provisions were insisted upon, it will be presumed that it by mistake omitted to express the fact in the policy, waived the provision or held itself estopped from setting it up, as a contrary inference would impute to it a fraudulent intent to deliver and receive pay for an invalid instrument. ( Van Schoick v. Niagara F. Ins. Co., 68 N.Y. 434; Whited v. Germania F. Ins. Co., 76 N.Y. 415; Richmond v. Niagara F. Ins. Co., 79 N.Y. 230; Woodruff v. Imperial F. Ins. Co., 83 N.Y. 133; Short v. Home Ins. Co., 90 N.Y. 16; Forward v. Continental Ins. Co., 142 N.Y. 382; Wood v. American F. Ins. Co., 149 N.Y. 382; Robbins v. Springfield F. M. Ins. Co., 149 N.Y. 477, 484.)
But it is manifest that that principle has no application to the facts in this case. When the defendant's policy was delivered neither of the other policies had been issued, but were subsequently obtained. Consequently, the defendant's policy was valid in its inception. If it became invalid it was by the act of the plaintiffs in subsequently procuring additional insurance, without obtaining an indorsement upon the policy of the defendant's consent. As the defendant issued to the plaintiffs a policy which was valid when delivered, the fact that they informed the defendant's agent of their intention to subsequently procure other insurance was insufficient to justify the courts below in holding that there was a waiver of that condition, or that the defendant was estopped from insisting upon it. ( Baumgartel v. Providence-Washington Ins. Co., 136 N.Y. 547; Moore v. H.F. Ins. Co., 141 N.Y. 219; McNierney v. Agricultural Ins. Co., 48 Hun, 239.)
The distinction between the knowledge of an existing fact which renders a policy void when delivered and the omission of the insured to give notice of and procure the required consent to a subsequent act, which, by its conditions invalidated it, although previously consented to, was clearly pointed out in the authorities cited.
The decisions of the courts below are at variance with the principle that written contracts cannot be controlled or varied by oral evidence, and that a written instrument must be regarded as the receptacle of the entire contract between the parties, and merges all previous oral agreements in it.
Nor do we think the contention of the respondents, that they were entitled to recover upon a parol contract of insurance, made with the agent, can be sustained. There was no proof that the defendant's agent ever agreed to issue a policy different from the one delivered, or that he agreed that other insurance might be procured without the indorsement required. It is manifest that this action was upon the policy issued by the defendant, and was not based upon any other agreement between the plaintiffs and the agent of the defendant.
The judgment of the General Term and of the trial court should be reversed and a new trial granted, with costs to abide the event.
All concur, except GRAY, J., absent.