The issues between these parties were succinctly stated by Judge Comstock, in the opinion delivered when the cause was here upon a former appeal. (19 N.Y. Rep. 305.) The theory of the suit, as extracted from pleadings consisting in great part, on both sides, of allegations and denials of the various facts which the pleaders expected to prove at the trial, is that the defendants had made an agreement to renew a policy of insurance from year to year, in consideration of a premium to be annually paid, either party being at liberty to give notice at any time that the arrangement was not to be continued. I quote the language of Judge Comstock. The policy of insurance to which he refers was a previously existing policy of the ordinary description, by which the defendants agreed to insure the plaintiffs for one year against loss by the injury or destruction of certain premises, to a certain amount, and in consideration of a certain price or premium paid to the insurers. This court has decided, and from its decision we are not to depart, that an agreement by parol to renew this policy from year to year, in consideration of the premiums to be annually paid, until one of the parties should signify their dissent to a further continuance of the arrangement, was not void by the statute of frauds, nor by principles of general law, nor invalidated by the express provision of a different character for the renewal of the policy contained in that instrument itself, and was within the power of the company to make. The issue sent back for trial in the court below, was the question of fact whether such an agreement was in existence between the parties at the time of the destruction of the property alleged to have been insured, and the questions now before us are questions of the admissibility of evidence, and the proper rules of law applicable to the decision of this issue. The policy of insurance, whose indefinite renewal was claimed by the *Page 164 plaintiffs, was dated July 21, 1845, and was, as I have stated, originally issued for one year. It insured the plaintiffs against loss by fire during the period specified, on their church building, to the amount of $5000 in consideration of a premium of $25. The contract in regard to renewing this policy is alleged by the complaint, if I understand it, to have been made when the year was expiring, or had expired, for which it was originally issued. It was an agreement to keep the insurance then in force indefinitely, as I have stated, until one or the other of the parties should signify their intention to put an end to it. The policy was renewed, either under this arrangement or in the ordinary way; in July, 1846, and a certificate of renewal for one year, in the ordinary form, issued. In 1847, the defendants determined that they would not continue to insure the premises for the same premium. The parties and their witnesses are at variance as to the particulars and the effect of what took place between the persons charged with the matter at this time. The fact, however, is undisputed that the plaintiffs either paid or agreed to pay the enhanced premium for the coming year. No conversation or negotiation is proved to have occurred in July, 1848, at the end of that year. The premises were destroyed in September, 1848.
The most important question in the case arises upon the instructions of the court to the jury at the trial, as to the effect of this change of the rate of insurance upon such an agreement as that alleged by the plaintiffs to have been made in 1846. After stating, that to make a valid contract of insurance, the minds of the parties must meet upon the subjects of such a contract, including the risk, the amount of insurance, the term of time, and the premium, the judge proceeded to charge that if such a contract as the plaintiffs claimed could be established, it must be a contract to insure from year to year at the same premium, as there was no provision for a change. That is, as explained by the next proposition stated to the jury, that if the premium was *Page 165 varied, a new assent of the parties to the agreement for an indefinite renewal must be established. The conclusion necessarily followed, and was stated to the jury, that a change of the premium was a refusal to continue the risk under the agreement of 1846. In response to the plaintiffs' counsel, the judge stated that the alteration of the premium was a termination of the agreement of 1846. And the judge submitted to the jury the question whether there was then, or subsequently, an agreement to modify the original agreement by changing the rate of the premium and to continue it in force as then modified. To all this the plaintiffs excepted, and their counsel insists with great earnestness that these rulings and the refusal to hold the contrary doctrine were fatally erroneous.
It seems to me that no such fault can be found with the rule thus laid down as applicable to the issue presented by the pleadings and the evidence. The counsel for the plaintiffs urges that he should have been allowed to explain and to recover upon what is styled "a permanent policy;" and again that there might be an agreement to renew a policy of insurance indefinitely at "the current rate of premiums." The ideas which these terms and propositions represent, have little to do with the real issue in this case. The phrase "permanent policy" was introduced at the trial by a witness for the plaintiffs, who was not an officer of the defendants or of any other insurance company, and not familiar with their contracts or usages. But the action was not brought upon an original parol agreement for the insurance of these premises, such as would seem to be intended by this expression. The original agreement between them was an ordinary policy of insurance, for a definite time, and at a specified rate. The plaintiffs allege, not that the defendants made a new parol contract of insurance, indefinite as to time and price, or to last indefinitely, notwithstanding any variation in any of its terms, but that they made an agreement to renew this previously existing contract, from year to year, until one or *Page 166 the other of the parties dissented. The parol agreement alleged, had reference, clearly and exclusively, to the previous written contract, and was for the renewal of that contract; and it seems to me to be merely stating it over again, or stating its legal effect, to say that when the insurance company refused to continue to insure the premises of the defendants at the rate which was fixed by the policy to which the first agreement referred, they refused to continue the risk under the agreement to renew that policy. The question then arose at once, and was distinctly and fairly submitted to the jury, whether, when this change of the terms of the original contract was made, the agreement testified to by the plaintiffs' witnesses to continue the former contract, was continued or renewed as to the new one. The premium or rate of insurance in such a contract is certainly one of its terms. The minds of the parties must meet upon it as well as upon the residue of the contract, and when they have met and formed the contract for a definite period and then renewed it, and they afterwards modify the original contract in such a particular, they must certainly, expressly or impliedly, agree to the indefinite renewal of the substituted agreement, in order to continue it in like manner as the first, unless it was a part of their original agreement that the contract of insurance should continue at whatever rate. As I have said, I do not find any such contract as this alleged in the pleadings or testified to by the witnesses. The original contract was a definite one in this as in other particulars, and the plaintiffs rely upon its renewal. There is nothing in the evidence as to a contract to renew the policy at what is called the current rate of insurance. In truth, every contract of fire insurance is special. No two risks are precisely alike. There are classes of risks of more or less hazard, arising from the nature or the situation of the property insured, but after all the contract is special in each case. I do not say that parties might not agree expressly upon an insurance for a definite or indefinite time, at what might be the current *Page 167 rate of such insurances. It would not be impossible, but it would certainly be difficult to explain and apply such a term in such contracts. But unless it were made expressly a part of the agreement, such an element would be foreign to the nature and subject of the contract, and to the ordinary method of the business of insurance against fire. It may be that a parol contract of insurance might be sustained for an indefinite time and at an indefinite rate of premium, and perhaps such a contract might be sustained, notwithstanding the existence of a written contract, definite as to both time and rate of premium. But there is no such question in this case. The issue here is upon the continuance of the original agreement between these parties, and when that was changed, as it admittedly was, by a change of the premium, all that the plaintiffs could ask, and perhaps more than they could demand under their present pleadings, was to have the question submitted to the jury, whether the alteration was accompanied by an agreement to renew the insurance from year to year, without prepayment and without notice, under the new premium as had been agreed under the old.
There were various offers made at the trial to prove the practice of the defendants in their insurances of other parties. The answer to these propositions is that the question in this case is not of the powers of the defendants, nor of their usages, but of the actual agreement made by the officers of the company with the plaintiffs in particular. Evidence of what took place with other parties could not prove a contract with the plaintiffs, and we are asked here to establish and not to interpret such a contract.
The questions and offer to prove what was the meaning of the words "permanent policy," were inadmissible or immaterial for reasons which have already been in part suggested. The witness of whom it was proposed to ask the question was not shown to be in any way competent to answer it, the inquiry was not material to the real issue in the case, and the *Page 168 definition sought to be given was accepted by the court, if it was necessary or proper to adopt any definition of the phrase.
The plaintiffs offered to show that it was the usage of the company in cases of agreement for permanent insurances, similar to the one in the present case, to serve notices of the expiration of the policies. The defendants had proved without objection, that notice had been given by them in 1846 and 1847 to the plaintiffs, that the policy held by the latter would expire on a certain day when the year for which it was originally made, or during which it had been renewed, would terminate. If it had been intended to show that such notices were usually given by the company to parties who had an understanding or arrangement that their policies should be renewed from year to year, the offer should have been more explicit, and it should not have contained the assumption that the plaintiffs had effected with the defendants an agreement for a permanent insurance. In truth, however, the whole question was one not to be determined or affected by the dealings of the company with other parties. There could not be a custom as to such a matter. Known and recognized usages and customs may be proved to explain or qualify what is doubtful or equivocal in a contract, but not to explain an act such as giving notice of its termination. If it had appeared that there were contracts with other persons for renewal of their policies from year to year until forbidden, which was not proved, and as we have seen was not evidence in itself, and if it had then appeared that such persons were notified that their insurance would terminate at the close of every successive year, this would not have affected the question of the existence of such an arrangement with the plaintiffs. What the defendants chose to do with other parties was immaterial to the plaintiffs, and as I have said, this was the whole scope of the offer. It was not a case of a custom or usage, in any proper sense, but simply an offer to prove how the defendants dealt with other persons than the plaintiffs.
There are many other questions of evidence in the case *Page 169 which I do not propose to discuss. They have been considered at large by Judge Denio, and in his views in regard to them all the Judges concur. The judgment should be affirmed with costs.
Judgment affirmed.