It is not a disputable proposition, that an insurance company may waive a condition in its usual form of policy, that in order that the policy should be binding, the premium must be actually paid, as well as any other condition in the contract *Page 507 intended for its benefit; and that if the insured is allowed to act upon the confidence of such waiver, the company is estopped to deny the fulfillment of the condition. The principle of the proposition, to prevent fraud, is found in the highest legal morality, and the cases set down on this point, upon the plaintiff's brief, place it beyond doubt, as a matter of authority.
We do not understand that the contrary was seriously pretended in the argument of this motion; but that, in the general form in which the proposition was stated in the charge, it might have misled the jury, as concluding all inquiry on their part into the authority of the agent in this particular case to make the waiver. In the statement of what took place at the trial, as drawn up by the defendants and allowed by the presiding Judge, no question as to the agent's authority appears to have been raised before the jury, nor, in the request to the Judge for instructions, to have been called to the attention of the court. The instruction being in itself correct, we are not to presume that it misled the jury; especially when, if not clearly or aptly expressed, it would have been so easy for the counsel of the defendants to have called the attention of the presiding Judge to the question of the agent's authority, before the jury withdrew, if he desired either him or them to consider that question.Lathrop v. Sharon, 12 Pick. 172; Raymond v. Nye, 5 Metc. 151.
The other alleged error in the instructions given to the jury, in relation to the effect upon the plaintiff's insurance upon his interest as mortgagee, of the release to him of the equity of redemption on the 2d day of December, 1861, was not pressed as such at the argument of this motion. As a misrepresentation of the plaintiff's interest in the subject of insurance as a mortgagee in possession, there was no error, since the insurance was asked and granted as of the 1st of December, 1861, before the release of the equity; and as to a change of interest, there was none, because the mortgage being at the time pledged to the Atlas Bank as security for the plaintiff's endorsements, it was obviously his interest, as well as design, that it should be kept separate from the equity released to him, and not merged in it. The clause in the body of the policy, that "if said property," meaning the property insured, "shall be sold or conveyed, this policy shall *Page 508 be null and void," obviously refers to a sale or conveyance of itby the assured, determining his interest in the subject of insurance, and not to a sale or conveyance to him, to the increase of his interest in it.
The ground of new trial laid in the newly discovered testimony of Stiness, that he was present at the interview between the plaintiff and Searle, the agent of the defendants, when this policy was renewed, and that the latter gave to the former only until the next day to come in and adjust the premium, is cumulative merely to the testimony of Searle, in the matter to which it relates. Such evidence cannot avail as a ground for new trial, "unless it is in a manner conclusive," — that is, controlling, as we understand the phrase, — "on the point on which it is offered." Potter v. Padelford Co. 3 R.I. Rep. 162, 166. This, again, depends upon the state of the proof upon the point, at the trial; and unless the court, looking at this, see, that upon the newly discovered evidence the jury ought to find the issue upon the disputed point for the defendants, such evidence, for the sake of both parties, ought not to open the case to a new trial.
At the trial it appeared in evidence, that several policies upon his mill and machinery had been taken out by the plaintiff for himself or for himself and his partner, coming from offices of which Searle was agent, some of which had expired, and were about to expire, and one of which the plaintiff had received notice the office would cancel, and that upon this last policy there would be a return premium due to the plaintiff to the amount of little more than half the amount of the premium he would have to pay to renew for a year the policy with the defendants; that either on the 3d or 4th of December, 1861, two or three days after the expiration of his old policy with the defendants, the plaintiff called at the office of Searle, their agent, and agreed for the renewal of this policy for a year from December 1st, 1861, and offered to pay the premium; that this offer was declined by Searle, for a greater length of time than, or until, the next day, when the plaintiff was to bring in the policy to be cancelled, and adjust with Searle the return premium on that, and the premium to be paid on the renewal of this, and in the meantime this was to be renewed for a year; that just as the plaintiff left the office, *Page 509 or immediately after, Searle ordered his clerk, Darrin, to fill up the certificate renewing this policy for a year, countersigned it, and ordered it to be recorded in the book kept by him for registering the defendants' policies and renewals, and which being done, the renewal certificate was placed in a pigeon-hole used for that purpose, to be delivered by Searle, if present, or by his clerk, if he were absent, to the plaintiff when he might call for it; that the certificate and record thus remained until the morning after the fire, which took place on the evening of December 11th, 1861, when Searle destroyed the certificate, and wrote across the name of the insured on the record of it in the book of the defendants' policies, "Not taken." So far, the evidence, in substance, agrees. The only point in which it differs is, that the plaintiff swears, that he was to come in and adjust the return premium, and the premium to be paid for this renewal, when it might be convenient for him; whereas, Searle swears, that he limited him until the next morning, and that only until that time was he to be insured on credit, and that he called upon his clerk, Darrin, to notice this limitation. Darrin, who was a witness for the plaintiff, swears positively, on his cross examination, that Searle "did not tell him to recollect that Mr. Heaton was insured until next day; that he recollected nothing about bringing in the policy (to be cancelled) next day; but to bring in the North American policy to be cancelled, but not next day, or any time being fixed;" confirming, in this respect, the testimony of the plaintiff. It is true that he states, that he did not pay particular attention to the conversation between Searle and the plaintiff, and that he was "sometimes quite deaf," though he "could not say that I [he] was, at the time of this interview." Neither his inattention nor his deafness, if we are to believe him, prevented him from hearing this part of their conversation, and Searle swears, that he called his attention particularly to it. On the evening of the fire, and before Searle was apprised of it, an interview took place between the plaintiff and Searle, at the house of the latter, at which the plaintiff was accompanied by George M. Daniels, his nephew, who was also a witness in the cause on the part of the plaintiff, when, according to the testimony of both Daniels and the plaintiff, the plaintiff told Searle, *Page 510 "that he had come to see about those policies, and asked him, how he had fixed them? Searle said, that he had fixed them as he agreed to. Heaton asked him, how that was? Searle said, that he had taken up the Greenwich policy, and cancelled the North American policy, and renewed the Home and Manhattan. Heaton said, he had not paid the premiums on the Home and Manhattan policies. Searle said, that wouldn't make any difference; he was insured in those two offices. Heaton asked him several times, if he considered him insured in those two offices? and Searle said, `Yes,' each time. Heaton took out a check and asked him if he would take payment for those premiums, that evening? Searle declined the check, and said, `that he did not do business at his house.'" These witnesses further swore, that at the same interview, after Heaton had told Searle that his mill was on fire, and a short conversation had ensued about the manner in which he had been informed of it, Heaton again put the question to Searle, "if he was insured in those two offices — the Home and Manhattan?" to which Searle replied, "that he was renewed on the books in those offices, but he should let the companies settle it;" and to the questions of the witness Daniels, to the same effect, put several times, made the same answer in substance. Searle, on the other hand, on the part of the defendants, admitting the interview, the offer of the check and his declining it, swears, that to the question of Heaton, — "I'm insured, ain't I?" — he replied, "I do not know whether you are insured or not;" and that to the question of Heaton, — "Didn't you tell me that I was insured down to the office?" — he made answer, "Yes, until next day, or one day, when you were coming in, and I did not know but that you had gone somewhere else, and got insured;" and that to the same question repeatedly put to him by the plaintiff, he repeatedly made, in substance, the same answer. The wife and son of Searle, who were also witnesses and the one present, as she swore, nearly all the time of the interview, and the other, as he swore, only at the latter part of it, support him in his testimony, that this was the character of his reply.
In such a state of the proof, relating to the matter to which the newly discovered cumulative evidence applies, and especially, *Page 511 with the admitted fact, that the renewal certificate was completely made out for a year, and left for delivery; and that this, with the record of it, remained until after the fire, when the one was destroyed, and the other marked, "Not taken," we could not say that the newly discovered evidence would be controlling on a new trial of the case, upon the point upon which it would be offered. It might, indeed, lead to doubt, and would certainly protract this litigation; but this, for the sake of both parties, as well as of the public, is a consequence which we ought to prevent.
For these reasons, we overrule this motion for a new trial upon the several grounds upon which it is made, with costs, and order judgment to be entered upon the verdict.