On appeal from the Supreme Court.
For the plaintiff-respondent, William Simon.
For the defendant-appellant, Arthur T. Vanderbilt and G. Dixon Speakman.
The opinion of the court was delivered by
CASE, J. The appeal is from a judgment in the Supreme Court entered on a jury verdict in the Somerset Circuit in favor of the plaintiff and against the defendant.
Defendant issued an insurance policy which by its terms insured plaintiff against loss by fire on his household furniture. The policy contained this provision:
"This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if the subject of insurance be personal property and be or become encumbered by a chattel mortgage."
There was no saving endorsement. At the time the policy was issued the insured's property was encumbered by an unpaid chattel mortgage open of record. Later there was a fire loss. After the making of the contract of insurance and before the fire the amount due on the chattel mortgage was paid. Plaintiff sued upon the policy and defendant answered, inter alia, that the policy, by reason of the quoted clause, was void in that the subject of the insurance was, at the issuance of the policy, encumbered by a chattel mortgage.
At the trial the plaintiff was permitted, over the objection of the defendant, to prove that the mortgage had been, as above stated, paid at a time between the issuing of the policy and the occurrence of the fire loss. Plaintiff was further permitted, over objection, to testify that he had, when ordering the policy, informed plaintiff's local agent of the existence of the chattel mortgage. The points argued by the defendant
are that the trial court erred in denying defendant's motion for a directed verdict and in making the disputed rulings on evidence.
The policy provision is clear and unmistakable. Quite as clear and unmistakable is the existence, at the inception of the contract, of the factual contingency upon which the entire policy was, according to its terms, to be void. An insurance contract, like any other contract, should be enforced in accordance with its plain provisions. Precipio v. Insurance Company of Pennsylvania, 103 N.J.L. 589. So, unless reason be found for holding that the language does not mean what it says, or that the insurer has in some way undone the effect of the explicit words of the contract, the policy was, from the beginning, not voidable but void -- null and of no effect.
Plaintiff submits that he ordered the policy from one of defendant's agents who had in his possession blank policies of insurance and who had the authority to issue the same, accept and retain premiums and bind the company; that at the time of placing the order for the policy plaintiff informed the agent of the existence of the chattel mortgage and the agent gave assurance that he would take care of the matter; that the company, through its ...