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This was the completion of a contract, evidence of which was contained in the two writings, viz., the application and policy, which merged all negotiations and agreements in the writing; and, under innumerable authorities, it is not subject to contradiction or variation by parol in an action brought upon it.”
Clearly not the case before us. Without stopping to analyze the other cases, an examination of them will show them distinguishable.
We think the instant case is zithin a line of cases of which Gristock v. Insurance Co., 87 Mich. 428 (49 N. W. 634), is an example. Justice GRANT, speaking for the court, said:
“The learned counsel for the defendant in their brief on this hearing insist that certain clauses of the policy were omitted in the former opinion (84 Mich. 161 (47 N. W. 549]), and that similar clauses were never before passed upon in this court. The first clause referred to is the one containing conditions as to mortgage. The policy provided that the company should not be liable “ 'If the property
is or shall become mortgaged without the assured's written notice to, and without the written permission of, this company indorsed on this policy.'
"In such case the policy was to be void. As stated in the former opinion, there was no written application, and defendant's agent was informed by the plaintiff of the mortgage existing upon the property. In obtaining this insurance, this agent represented the defendant and not the plaintiff. The plaintiff had concealed nothing, but, on the contrary, had disclosed to the defendant, through its agent, the exact condition of the property.
Why, with the more reason, should it not be held to assume the risk of a disclosed incumbrance, which, for some reason, it has not seen fit to indorse upon the policy? The only difference between that case and this one is that this policy required a written notice by the assured, and permission to be indorsed upon the policy. But, if the attention of the assured in that case had been called to the condition, it would as certainly have avoided his policy as would the clause now under considera
tion. The principle is the same in both cases, and both must be governed by the same rule. Plaintiff had a right to rely upon the assumption that his policy would be in accordance with the terms of his oral application. If the defendant desired to make it anything different, it should, in order to make it binding upon plaintiff, under the authorities in this State, have called his attention to those clauses which differed from the oral application."
See Crouse v. Insurance Co., 79 Mich. 249 (44 N. W. 496); Russell v. Insurance Co., 80 Mich. 407 (45 N. W. 356).
The case of Gristock v. Insurance Co., supra, is cited with approval in Hartford, etc., Ins. Co. v. Cartier, 89 Mich. 41 (50 N. W. 747).
In Pollock v. Insurance Co., 127 Mich. 460 (86 N. W. 1017), notice was given to the agent of the insurer of the proposed removal of the insured goods to another building, and the company was held bound, though the consent was not indorsed on the policy. The court referred to Maryland Fire Insurance Co. v. Gusdorf, 43 Md. 506, and quoted from the opinion as follows:
"Since that decision the doctrine of equitable estoppel has, especially in insurance cases, been extended and applied at law as well as in equity, by adjudications of the courts of last resort in many of the States, and the current and weight of judicial precedent and authority in this country have established the proposition that, in such cases, the estoppel is equally available in either tribunal. The Supreme Court, in Wilkinson's Case, 13 Wall. 222, has also in a very able opinion sustained this position.
"The principle is that, where one party has, by his representations or his conduct, induced the other party to a transaction to give him an advantage, which it would be against equity and good conscience for him to assert, he would not, in a court of justice, be permitted to avail himself of that advantage.' This proposition, thus sustained by the modern decisions, and founded in reason and justice, they add, does not admit that
the written instrument may be contradicted by oral testimony, but goes upon the idea that it may be shown by such testimony that the written instrument cannot be lawfully used against the party whose name is signed to it.”
The opinion in Pollock v. Insurance Co., supra, concludes as follows:
"There could be no possible question about the authority of Gaukler to consent to the removal of these goods, and, he and the company having knowledge of their removal, it became the duty of the company to do one of two things—either consent to the removal, or cancel the policy and return the unearned premium. It could not retain the premium, and thus profit by it in case there was no loss, and, the moment there was a loss, deny any liability, though still retaining the premium. McGraw v. Insurance Co., 54 Mich. 148 (19 N. W. 927); Haire v. Insurance Co., 93 Mich. 481 (53 N. W. 623, 32 Am. St. Rep. 516); Ætna Ins. Co. v. Maguire, 51 Ill. 342; Goit v. Insurance Co., 25 Barb. [N. Y.] 189; Hathorn v. Insurance Co., 55 Barb. [N. Y.) 28."
The case of Dowling v. Insurance Co., 168 Pa. 234 (31 Atl. 1087), is in many respects like the one before us. That case was assumpsit upon a policy of fire insurance. At the trial it appeared that the policy was for $5,000 covering a dwelling house and household furniture. The building was described in the policy as being "occupied by insured as a dwelling house only." The evidence showed that the house was used as a boarding house, but that the agent who wrote the policy was fully informed of this fact by plaintiff, and that plaintiff did not read the policy until after the trial. Further facts appear by the charge of the court. We quote from the opinion (page 239 of 168 Pa., page 1087 of 31 Atl.):
"The fraud or mistake of an insurance agent within the scope of his authority will not enable his principal to avoid a contract of insurance to the injury of the insured who acted in good faith, and the fraud
or mistake of the agent may be proved by parol evidence notwithstanding it is provided in the policy that the description of the property shall be a part of the contract and a warranty by the insured. This is clear upon principle, and it is abundantly sustained by authority. Smith v. Farmers' & Mechanics' Mutual Fire Ins. Co., 89 Pa. 287; Eilenberger v. Protective Mutual Fire Ins. Co., 89 Pa. 464; Susquehanna Mutual Fire Ins. Co, v. Cusick, 109 Pa. 157; Kister v. Lebanon Mutual Ins. Co., 128 Pa. 553 [18 Atl. 447, 5 L. R. A. 646, 15 Am. St. Rep. 696] ; Meyers v. Insurance Co., 156 Pa. 420 [27 Atl. 39). This case is much stronger for the plaintiff than those above cited. In all of these, written applications had been signed by the insured, and in each case the application was made a part of the contract. In this case no written application was made, and the policy was written by the agent and not read by the insured until after the fire. The building insured was built for and used as a boarding house, and was erroneously described in the policy as “occupied by the insured as a dwelling only.' The testimony was clear and uncontradicted that there was no mistake or deception on the part of the plaintiff, who fully and accurately described the property to the agent as a boarding house and spoke to him of its capacity and use. It was seen and examined by the agent, and its use, which was apparent, was fully known to him. The misdescription was his act alone, in the face of light and knowledge, and was unknown to the insured until after the loss occurred. The defendant cannot be released from its contract because the plaintiff acting in good faith accepted without examination the policy written by its agent.”
See, also, Westchester, etc., Ins. Co. v. Earle, 33 Mich. 143; Kitchen v. Insurance Co., 57 Mich. 135 (23 N. W. 616, 58 Am. Rep. 344); Carpenter v. Insurance Co., 61 Mich. 635 (28 N. W. 749); Cronin v. Fire Ass'n, 119 Mich. 74 (77 N. W. 648).
In the instant case the jury by their verdict have found that defendant's agent was truly informed of the use which was to be made of the building. The record shows he had authority to write insurance on a building so used. He issued a policy which did not truly state the use to be made of the building. Applying the principles of law stated in the opinions we have cited to the instant case, we think it should be said the company is now estopped.
Judgment is affirmed.
BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.
PEOPLE V. STEERE.
1. DIVORCE-CONFLICT OF LAWS-HUSBAND AND WIFE-MARRIAGECRIMINAL LAW. In a progecution for desertion brought against the re
spondent husband, who had been divorced under the law of the State of Illinois, in which State it was provided by stat. ute that neither party should remarry within one year after the granting of the decree, respondent, who had not acquired a residence in Michigan, and who came to Michi. gan to avoid the effect of the Illinois statute, should have been discharged by the court upon the trial upon the ground that the second marriage to the complaining witness in the State of Michigan within the prohibited period was unlawful and void notwithstanding the fact that under the law of the State of Michigan the marriage would have been valid, if the parties had acquired a
matrimonial domicile. 2. CRIMINAL LAW-ABANDONMENT.
Marriage by a divorced person in violation of the statute
of the State in which he had previously had a domicile prohibiting remarriage within the period of one year of the decree of divorce, was invalid wherever celebrated: the incapacity to contract marriage imposed by the policy