Bradley v. Potomac Fire Insurance

Alvey, J., delivered the opinion of the Court. Whether the liability of the appellee under the policy sued on ever attached, is the single question in this case, and that ¹¹³ depends upon the true construction of the policy and its conditions. The policy is dated the 11th of November, 1867, and by it, it is declared that the appellee, “ in consideration of one hundred and sixty dollars, to be actually paid to this company within fifteen days from this date, by the insured hereinafter named, do insure Wm. L. Bradley, against loss or damage by fire, to the amount of four thousand dollars on his property,” situate at Itoxbury, Mass.; and in the clause that follows the description of the property, it is set forth that the company thereby “promises and agrees to make good unto the said insured, his, Ac., all such immediate loss or damage, not exceeding, &c., as shall happen by fire to the property as above specified, during one year, to wit: from the eleventh day of November, one thousand eight hundred and sixty-seven, (at 12 o’clock at noon,) until the eleventh day of November, one thousand eight hundred and sixty-eight, (at 12 o’clock at noon,) the said loss or damage to be estimated,” &c.

By the fourth condition of insurance it is provided that the company shall not be held liable under the policy, or under any renewal thereof, until the premium in full therefor is actually paid; and by the fifth condition it was mutually agreed that if the premium on the policy was not paid within fifteen days as therein provided, the policy should be null and void; and it was further agreed that the policy was made and accepted in reference to the terms and conditions therein set forth. At the trial below it was admitted that the policy sued on had been executed by the appellee and delivered to the appellant, on the day of its date, and that the proper preliminary proof had been furnished the company of the loss, and that $160, the premium mentioned in the policy had been tendered to the appellee by the appellant after the fire, and within fifteen days after the execution of the policy. The Court below ruled against the right of the appellant to recover on the policy, and to that ruling he excepted. ¹¹⁴ On the part of the appellant it is contended that the liability of the appellee attached from the date of the policy, and that the fifteen days given within which to pay the premium, was simply a. credit extended to him, not at all intended to aifect the risk, provided the premium was paid or tendered within that time; while on the part of the appellee it is contended that the actual payment of the premium, within the fifteen days, was a condition precedent to the attaching of the risk, and that, as the property was destroyed before the tender of payment within the time limited, there was nothing upon which the risk could • attach, and therefore there is no liability for the loss; and this latter construction was the one adopted by the Court below. The. question would seem to be a plain one; and the only thing that affords the slightest ground for the construction contended for by the appellant, is the stipulation on the part of the company to insure the property against loss by fire, for the period of one year, reckoning that period from the date of the policy.

But though such be the stipulation, it was certainly competent to the parties to