The question raised in this case was settled in Gale v. Ins. Co., 41 N.H. 170, which is in conformity with the general current of authorities. It is claimed, however, by the plaintiff; that, *Page 69 inasmuch as the policy of the Niagara company provides that by the existence of any other agreement for insurance, whether valid or not, the insurance in that company shall be void, that policy must inevitably be void, and being so void, there is nothing to prevent the validity of the policy of the defendant company. Even if the first policy be void for that reason, I do not think that fact will make valid the second. At the time the plaintiff agreed with the defendants for the second policy, he had a valid policy in the Niagara company, and that, by the terms of the defendants' policy, rendered the second policy void. Jackson v. Massachusetts Ins. Co., 23 Pick. 418; Clark v. New England Ins. Co., 6 Cush. 342; Barrett v. Union Ins. Co., 7 Cush. 179. If, then, the Niagara policy became void, as contended by the plaintiff, as the result of his procuring the second policy, the question arises whether both policies are not void.
I do not think, however, that the provision in the Niagara policy that an invalid agreement for insurance shall render that policy void has that effect, for the reasons suggested by my brother LADD, namely, (1) that a nugatory policy constitutes no contract at all — it is a mere nullity; (2) that such a condition is not a valid one, being void for repugnancy, and inconsistent with the scope and effect of the contract.
FOSTER, C. J., C. C. I entirely agree with the views and conclusions of my brethren.
Case discharged.