Defendant appeals from a judgment entered upon a verdict, and - from an order denying a motion for a new trial.
The circumstances of the case are peculiar, and the net result will be, if this judgment be finally affirmed, that the plaintiff will have recovered upon three contracts of insurance for $2,500 each, although it did not intend to take out, and the defendant did not intend to* issue more than- two contracts, and neither party knew or understood or believed, when the loss occurred, that more than two contracts had been entered into. The plaintiff owns a dry goods store in Columbus, O. Prior to the year 1905 the defendant, whose office is in the city of Flew York, had carried insurance to the extent of $5,000 upon plaintiff’s property in Columbus. This insurance was represented by two policies, one of which, for $2,500 and hereinafter referred to as Policy A, covered plaintiff’s stock, and the other, also for $2,500, hereinafter referred to as Policy B, covered *567plaintiffs furniture and fixtures. Policy A, covering the stock, expired April 7, 1905, and Policy B,-covering the furniture and fixtures, expired on March 11, 1905. It had been plaintiffs custom to intrust the taking out and renewal of its insurance to the firm of Weed & Kennedy who were insurance brokers in the city of Hew York.
Sometime prior to March 11, 1905, defendant’s local agent in Columbus applied to plaintiff to permit him to renew the two policies above referred to, which after some demur, plaintiff consented to. Accordingly on March 11, 1905, the day on which Policy B expired, defendant’s Columbus agent made out two new policies which were sent to and received by plaintiff and retained by iti These new policies were undoubtedly intended as renewals of Policies A and B, but, probably by mistake, the insurances were transposed. A policy, hereinafter termed Policy C, was dated March 11, 1905, and so written as to cover plaintiff’s stock, although the former policy upon stock did not by its terms expire until April 7, 1905. A policy, hereinafter termed Policy D, was dated April 7, 1905, and so written as to cover plaintiff’s furniture and fixtures, although the former policy upon furniture and fixtures expired by its terms on March 11, 1905. The.result was that plaintiff was insured on its stock for $5,000 until April 7, 1905, and until that date was uninsured, by this defendant, as to its furniture and fixtures. It is reasonable to assume that this result flowed from some mistake, but whether that mistake was the fault of plaintiff or of defendant’s local agent it is impossible to say, and is probably immaterial. At all-events.the plaintiff, as has been said, accepted and retained the new policies, and, later on,' when a loss had. occurred, made proofs of loss and accepted payment under both policies covering the stock, viz., Policies A and G.
While these transactions were taking place in Columbus, Weed & Kennedy in Hew York, a few days before March 11, 1905, applied to defendant at its main office for a renewal of Policy B, and received what is known in insurance parlance as a “ binder,” being a memorandum to the effect that the company has agreed to issue a policy. Ordinarily a “binder” becomes effective at once, and the property is deemed to be insured from the moment the binder is issued, standing in place of a policy until a formal policy *568is actually issued. When a “ binder ” is issued,, as in this case, as evidence of an agreement to renew an outstanding policy, it manifestly becomes effective, as a contract of insurance, only upon the expiration of the former policy, just as a formal renewal policy would become effective only upon the expiration of the policy to be renewed. The effect of the “ binder ” in the present case was that the defendant agreed to renew Policy B on furniture and fixtures upon the expiration of that policy on March 11, 1905, so that the “ binder ” became effective as a policy of insurance, if' at all,- upon March 11, 1905, at the same time that Policies C and D were delivered to plaintiff in Columbus. The plaintiff having adjusted its loss and received payment under both Policies A and 0 now sues for the loss on furniture and fixtures under the “ binder.” A fire occurred on plaintiff’s premises on March 24, 1905. Policy D covering furniture and fixtures, but which was so drawn as not to become effective until April 7, 1905, was surrendered and canceled. Plaintiff made proofs of loss and was paid under Policies A and C, both covering stock. It also made proofs of loss under the “ binder,” but these proofs were rejected and returned, and defendant’s adjuster refused to take part in the adjustment of losses oil the furniture and fixtures.
It is quite evident that this whole history comprised a chapter Of mistakes, commencing with the error in making out the policies in Columbus. It is clear that the new policies taken out there were intended to.be renewals of the former policies, and it is apparent that Weed & Kennedy had no intention of. taking out- additional insurance on the, furniture and fixtures, but meant merely to-renew the former policy, so that we have the case of an attempt in two ■places to renew the same policy. If the renewals had been accurately made in Columbus so that a new policy had -beenissued there covering furniture and fixtures and dated March 11, 1905, and Weed & Kennedy , at the same-time, and in ignorance of the Columbus renewal, had taken out a renewal “ binder ” in Kew York; it is probable that ho one would have contended for an instant that defendant had agreed to issue two policies of $2,500 each upon the furniture and fixtures, for it would be apparent that the case was one of two persons seeking to renew the same policy. This case seems to me to be identical in principle. When the mistake was *569made in the renewals of the policies in.Columbus, if it'was a mistake, the plaintiff undoubtedly could have had the mistake corrected. By its failure to seek a correction and by subsequently proving a. loss upon both policies, the old and the new, which covered the stock, it adopted the mistake and consented to the renewal of the policy expiring on March 11, 1905, on furniture and fixtures, by a policy covering stock. It was its duty to have notified its agents in Hew York that it had determined to renew the policies in Columbus, and the defendant should nob be mulcted because the plaintiff neglected this duty. Having elected to renew the policies inColumb.us the authority of the Hew York agents to effect the. renewal was necessarily revoked, notwithstanding they had not been apprised of the fact. The defendant’s liability, if it was liable, must rest upon contract, and it is essential to the validity of a contract that the minds of the parties shall have met. It is clear beyond contradiction, as it seems to me, that the minds of these parties never met upon the proposition that plaintiff should be insured upon three policies for $2,500 each.
The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, J., concurred. , .
Judgment and order affirmed, with costs.