Upon the facts stated, I think judgment should be entered for the defendants. The policy upon which the suit is brought contains this condition: "If the premises hereby insured become vacated by the removal of the owner or occupant, without immediate notice to the company and consent endorsed, this policy shall be void." The case shows that the premises were vacated about nine months before the fire, and remained unoccupied until burnt; that no notice thereof was ever given to the company, and their assent to a continuance of the contract, under the changed condition of the property, was never obtained.
It is not pretended that there was anything illegal or unconscionable in the condition. No one will contend, I suppose, that such a stipulation is not both legal and proper, for the protection of the insurer against fraud,c. It certainly formed an integral and essential part of the contract of insurance, at the time the policy was written.
Waiving for the present the inquiry whether a failure for nine months to give any notice whatever should be regarded as a failure to give "immediate" notice within the meaning of the policy, no question is left but that there was an entire failure by the plaintiff to perform this express and important stipulation in the contract. My brethren hold that the defendants are liable notwithstanding this failure of performance by the plaintiff, on the ground that his failure was the result of a mistake, against the ordinary and legitimate consequences of which he is protected by Gen Stats., ch. 157, sec. 2. In this I have not been able to agree with them. The statute is as follows: "No policy of insurance shall be avoided by reason of any mistake or misrepresentation, unless it appears to have been intentionally and fraudulently made." The question is, What does this mean? I confess it seems to me the meaning lies on the surface of the language used, and that the provision relates to the making of the contract and not to its performance. The *Page 267 whole import and effect of the statute is to guard against the consequences of a mistake; for a misrepresentation not intentionally nor fraudulently made is simply a mistake, and nothing more. To protect the assured against a forfeiture by reason of an innocent mistake in making the contract of insurance accords with nothing justice, and seems to be little more than introducing a familiar branch of equitable relief, but to release him entirely from the performance of a legal and wholesome condition in the contract, which he has entered into fairly, with his eyes open, when there is no pretence of fraud or mistake in the making of the contract, seems to me such an extraordinary interference with the right which all men have to bind themselves by any legal contract they may choose to make, that it is not to be inferred except upon such evidence as leaves no other conclusion possible.
If I am wrong in supposing that the statute is so plain as not to admit of interpretation, then we must look for the just rule of construction to be applied in determining what it means. It is said to be the duty as courts so to construe statutes as not to violate fundamental principles — Potter's Dwar. on Statutes 144; and, again, statutes are to be interpreted with reference to the principles of the common law in force at the time or their passage, except when the statute itself or the courts have otherwise determined. Ib. 145. If there be doubt, and one construction leads to manifest absurdity and injustice while the other accords with natural equity and reason, the latter should obtain. It seems to me contrary to fundamental principles, as it clearly is contrary to the principles of the common law, that one party to a legal contract should be released from performance of a condition upon which the liability of the other is expressly made to depend, and the other still be held liable. It certainly seems to me little less annulling a contract which the parties have made for themselves, and substituting for it a different one such as somebody may suppose they ought to have made; and this neither the legislature nor the court can do.
The alleged mistake here is, that the plaintiff did not know the premises had been vacated. Was it not his duty to have known that fact? Or, if he did not know it personally, ought he not to have provided for the fulfilment of his contract in this respect, as he easily might, without his personal knowledge? He deliberately bound himself, under penalty of forfeiting his policy, to inform the defendants "immediately" in case the premises were vacated. It was an indispensable requisite to the literal performance of this stipulation that he should inform himself of the fact he thus bound himself to communicate. If he failed to inform himself, and also failed to provide that notice should be given without his personal knowledge, it seems to me clear that he omitted the very thing he had bound himself to do; and I am unable to discover anything to distinguish the case from any other where a person, from negligence or forgetfulness, fails to discharge a legal obligation which be has voluntarily assumed. I cannot comprehend the ground upon which his failure can be said to have resulted from mistake, in any legal or proper sense of that term. The whole *Page 268 amount of it seems to be, that he undertook to do a certain thing as a condition upon which his policy should continue in force, and then utterly neglected to take a single step in the direction of performing the condition.
The reasons for my dissent, then, are, — (1) that, admitting this to be a mistake, it does not come within the statute, inasmuch as the statute has relation to mistakes in the making of the contract, and not to a clear failure of performance like this; (2) that this cannot properly be called a mistake, but simply a negligent want of knowledge by the plaintiff of a fact which, by the express terms of the contract, he was bound to know and communicate to the defendants.
It is further suggested as not impossible, that a reasonable interpretation of the condition may relieve the plaintiff from the forfeiture contemplated by its terms; that the word "immediate," as there used, means substantially the same as with a reasonable time, and that a reasonable time had not elapsed during the nine months that intervened between the vacating of the house and the fire. It will not be contended, I suppose, but that we must give to the word "immediate," as used in this contract, its natural and commonly received signification and effect. The word is defined as "having nothing intervening, either as to place, time, or action: direct, proximate." Doubtless, in the common use of the language, "immediate" does not always mean without the intervention of an instant of time, or the smallest conceivable extent of space. In a certain sense, I should say the plaintiff here would be entitled to a reasonable time within which to give the notice; but the notice must still substantially answer the terms of the contract. It must be immediate, according to the idea conveyed by the word in the common language of the country. It seems to me impossible to hold that a failure to give the notice for a space of nine months was not a failure to give "immediate" notice, within any fair and reasonable construction of the policy.
Case discharged.