The plaintiff is a corporation organized under the laws of the State of New Jersey and operated and maintained a store in the *562city of Columbus, O.. The defendant is an insurance company organized under the laws of the State of New York. The plaintiff had, among other insurance upon its property in Columbus, O., two policies issued by the defendant for $2,500 each. Policy No; 222,243' was dated March 2, 1904, was to continue for one year from the 11th of March, 1904, to the- 11th of March, 1905, and covered “ store and office furniture, fixtures and furnishings, counters, shelving, show cases ” and other personal property in “ the five-story-an.d basement brick, metal, roofed building, situate and known as Nos. 168 to 178 North High Street, Columbus, Ohio.” This insurance expiring on the 11th of March, 1905, a representative of Messrs. Weed & Kennedy, insurance brokers in the city of New York and who were plaintiff’s agents, took to the office of the company what was called a “binder” to obtain a renewal of this insurance. Before the lltli of March, 1905, when this policy then upon the plaintiff’s property expired the representative of the defendant in charge of the defendant’s business signed this binder thereby accepting a renewal of this policy No. 222,243, for $2,500. This was some days before March 11,. 1905. This binder provided: “The undersigned accept the above and make the same binding from foregoing written date, subject to conditions of Policies issued by respective companies.” And on that was written “ G." R. [defendant company] Amount 2,500 Accepted J. IT. P.,” who was James II. Perry in the employ of the defendant, and it is not disputed but that he had authority to accept insurance. At or before the time this binder was signed a formal application for a renewal of policy No. 222,243 was delivered to the defendant and it is on this application that the binder was signed. No. notice was given to Weed & Kennedy or the plaiiitiff that the defendant refused to renew this policy until after the fire, which occurred on the 24th-of March, 1905. On May 15, 1905, the plaintiff submitted proofs of loss claiming $1,678.52, stating-that the amount - of property damaged by the fire on March 24, 1905, was $24,000, the total amount of insurance on the property including the policy in question was $35,745, and the proportion of loss to the. defendant under this'policy was, as before stated, $1,678.52.
Upon these facts, it is not disputed but that the defendant would have been liable Upon this policy. The defendant’s defense to this *563claim is based on the following 'facts: At the time in question the defendant had an agent in Columbus, O., who had authority to issue policies of insurance. About a week prior to March 11, 1905, the defendant’s agent in Colunibus called upon the plaintiff and told its manager that he wssHlie agent of the defendant in Columbus; that the plaintiff haWa policy expiring on the eleventh of March that had formerly been placed in New York, and that he, the agent, would ^like to have the privilege of writing the business himself. The .ihauager told the defendant’s agent to come back on March eleventh, and on that day the defendant’s agent had another conversation with the manager. He then called the manager’s ¿attention to the fact that this- policy expired at noon of that day; that the plaintiff also had another policy expiring in April which policy the agent would also like to take care of, and the manager then instructed the agent to write up two policies to take the place of those expiring. The manager stated that this business had been placed by Weed & Kennedy, of New York, and they rather expected that they would renew the business in New York, when the agent told the manager that even if they did renew it in New York it would have to come to the Columbus agent of the defendant for signature, and the manager then directed the agent to “write the business.” On the agent’s return to his- office before noon he had a new policy written out and mailed it to the plaintiff. This policy of insurance was numbered 256,463 and was introduced in evidence. It did not purport to be a renewal of any other policy, and did not cover the fixtures and other property that was covered by policy No. 222,243 which expired on the eleventh of March and which had been renewed by the defendant at the request of Weed & Kennedy in New York. The premium on this policy issued on March 11, 1905, issued in Columbus, was paid.
The defendant’s agent in New York testified that he signed this binder some days before March eleventh, so that at the time of these occurrences in Columbus the defendant had absolutely accepted a renewal of policy No. 222,243, which, as before stated, insured the office furniture, fixtures and furnishings. That, it seems to me, was a completed transaction which renewed that policy. The policy issued by the defendant, in Columbus on March *564eleventh was not in form a renewal of policy No. 222,243 ; did not cover the same property, and it., seems to me was clearly not the policy of insurance that the parties as between themselves had agreed to make, namely, a renewal of policy No. 222,243 covering the fixtures. What both the plaintiff and defendant undertook to do was to renew policy No. 222,243. That wás^accomplished by this binder which was signed in New York and'W|iich then became an actual existing obligation of the defendant. ^ After this was signed and the renewal of policy No. 222,243. had become an accomplished fact the defendant’s agent in Columbus asked the plaintiff in Columbus, without any communication wiifii the defendant in New York, to place the insurance through him\ and sent to the' plaintiff a policy of insurance which undoubtedly was expected would take the place of policy No. 222,243 which expired on the eleventh of March. It did not," however, take the place of that policy and was not, therefore, a compliance with the obligation of the defendant to issue a policy in renewal of policy No. 222,243. There is no evidence that it. was accepted by the plaintiff as a compliance with the defendant’s obligation to issue a renewal of that policy. It seems to me that if the new policy issued on March 11,1905, in Columbus, O., was issued by mistake the defendant could have repudiated that policy and might not have been liable on it. Assuming that the fact that its agent in Columbus issued a policy which was not a renewal of the policy which the- defendant agreed to renew; which covered different property; which was.not a compliance with the obligation it had undertaken in New York some days before to renew policy No. 222,243, was sufficient to justify the defendant in rescinding that policy as issued under a mistake of fact) it was not a defense to the obligation assumed by the defendant in the execution of this binder to renew the policy covering the fixtures which but for a renewal of that policy was not covered by insurance. Assuming, however, there was a question of fact as to whether this policy issued in Columbus, O., was accepted as a renewal of policy No. 222,243, the court submitted that question to the jury and at the request of the defendant charged that the sole question for them to detérmine was whether the policy issued and delivered to the plaintiff by the agent of the defendant at Columbus on March 11,1905, was intended *565to be a renewal of the former policy or new business; that if they found, that the policy was a renewal they should find for the defend, ant. The court further charged the jury at the request of the defendant that if the policy delivered on March 11, 1905, was intended to be a renewal of the former policy the jury must find for the defendant, and this instruction was repeated in several requests which were presented by the defendant and charged. The jury found a verdict for the plaintiff and thus found that the policy delivered in Columbus was not issued as a renewal of policy No. 222,243 and was not received by the plaintiff as such a renewal, and if this finding was sustained by the evidence, which I think it was, it seems to me there can be no doubt but that the plaintiff was entitled to recover.
It is stated that by reason of the fact that the defendant issued this additional policy in Columbus for $2,500 there was more insurance on the property than either party intended. It does not seem to me, that this necessarily follows. There was no restriction on the defendant as to the amount of insurance that it should take upon this .property. The loss was less than the amount covered by the insurance on the property and' it made no difference to the plaintiff whether this policy issued by the defendant in Columbus was accepted as a valid policy of insurance or not for it was fully covered on its stock by the other insurance. Accepting as valid the policy issued Oil March 11, 1905, in Columbus, simply relieved other insurance companies from part of the obligation to the plaintiff under their policies. The continued existence, however, of policy No. 222,243 was essential to the protection of the plaintiff, as but for that policy its fixtures were not insured. The plaintiff was bound in its proof of loss to the various insurance companies which had risks upon its stock to state the facts in relation to the policy issued in Columbus, and the fact'that the defendant accepted the obligation under that policy certainly sho*uld not estop the plaintiff from enforcing this policy on its fixtures. If the defendant had repudiated the policy issued in Columbus on March 11, 1905, then the insurance could have been ad justed so that the other companies could have been compelled to pay the total amount of loss. As before stated, it was entirely immaterial to the plaintiff whether the defendant admitted liability upon that policy or repudiated it. *566When the policy of March eleventh was actually issued there was nothing said about the amount of insurance on the stock and fixtures and nothing was said on the question as to whether or not there should be an increase of insurance. Flor does-it anywhere appear that the plaintiff was ever notified that the limit of insurance which the' defendant would place upon its property was $5,000. This binder in suit was also included in the list of . insurance furnished to the adjusters and upon which the adjustment was made and before any word came from the defendant repudiating the obligation under this binder, the adjustment with all the' insurance companies had been made and the amount for which each insurance company was liable had been accepted. The result is that if the defendant succeeds in this defense the plaintiff will lose a portion of the insurance which it supposéd it had upon the premises and which loss could have been avoided if the defendant had promptly repudiated the Columbus policy.
We think, therefore, that the verdict of the jury was sustained by the evidence and the judgment and order appealed from should be affirmed.
Laughlin and Miller, JJ., concurred ; Clarke ánd Scott, JJ., dissented.