[COMMON PLEAS DIVISION.]

GRAHAM V. THE LONDON MUTUAL FIRE INSURANCE

COMPANY.

Insurance-Mutual Company-Further subsequent assurance-Assent.

To an action on a fire policy in a mutual insurance company, the defen dants set up as a defence the eighth statutory condition, that the company were not to be liable for any loss "if any subsequent insurance be effected in any other company, unless and until the company assents thereto by writing, signed by a duly authorized agent." By 44 Vic. ch. 20, sec. 28 (0.), the Fire Insurance Policy Act is made applicable to mutual fire companies, except where the provisions of the Mutual Act are inconsistent with, or supplementary, or in addition thereto. Sec. 39 of the Mutual Act enacts in substance, that if a double insurance subsists in defendants' company and another company, the defendants' policy should be void, unless such double insurance subsists with the directors' assent endorsed on the policy, signed by the secretary, &c., or otherwise acknowledged in writing; and sec. 40, that whenever the company receives notification in writing of an additional sum being assessed on the same property in another company, the same shall be deemed assented to unless the company within two weeks after the receipt of such notice signify their dissent in writing. The defendants' policy was effected on the 31st July, 1884. On 4th January, 1886, the plaintiff effected a further insurance in another company for $1,000. On 8th March, 1886, the plaintiff wrote defendants: "I hereby notify you that I have put a second insurance on my stock and farm implements.' 10th March the defendants replied, informing plaintiff that he had not "given the number of the policy or the amount of the insurance, or the name of the company." The plaintiff did not reply to this, because, as he said, he was away from home. The loss occurred on the 16th March. The jury found that the plaintiff did not, within a reasonable time after effecting the further insurance, notify the defendants; but that the notice was reasonably sufficient as far as he knew.

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Held, that under sec. 39, the insurance was void; and that, under the circumstances, there could be no implied assent under sec. 40; and further, that the notice was not sufficient.

Per GALT, J.-The insurance was also avoided under the eighth statutory condition; and if sec. 40 could be held to be supplementary thereto, the plaintiff, by reason of the defective notice, did not come within it.

THE statement of claim alleged that on 31st July, 1884, the plaintiff effected with the defendants a policy of insurance against loss or damage on (among other things) his barn, stable, and driving-house, for the sum of $600, and on the ordinary contents of his said buildings of $800, making a total of $1,400; and that on 18th March, 1886, while the policy was in force, the said buildings with their contents were destroyed by fire; and he claimed $1,400.

The third ground of defence was, that the said policy was made subject to the statutory conditions contained in the Fire Insurance Policy Act, which, amongst other things, provided as follows: "The company is not liable for loss if there is any prior insurance in any other company, unless and until the company's assent thereto appears herein, or is endorsed hereon, nor if any subsequent insurance is effected in any other company unless and until the company assents thereto by writing, signed by a duly authorized agent." It then alleged that after the execution of the said policy, the plaintiff effected other policies without the consent of the defendants.

The cause was tried before Armour, J., and a jury, at Guelph, at the Fall Assizes of 1886.

There were several other grounds of defence taken, but as the judgment does not turn on them, it is unnecessary

to set them out.

It appeared from the evidence, that on 4th January, 1886, the plaintiff effected a further insurance with the Ontario Mutual Insurance Company for $1,000, of which no notice was given to the defendants until the 8th March, when he sent the following letter to the defendants, addressed to the manager:

"Dear Sir, I hereby notify you that I have put on a second insurance -on my stock and barn and implements."

To which the defendants replied on the 10th March :

"Dear Sir, I enclose your favour of 8th inst. You neither give the number of your policy nor state the amount of other insurance, or name the company with which you have insured."

According to the evidence of the plaintiff he was absent from home when the answer was received, and consequently no reply was given.

The fire took place on the night of 16th March.

At the conclusion of the case the learned Judge submitted several questions to the jury.

The questions submitted to the jury, bearing on the above point, were as follows:

"Q. Did the plaintiff, within a reasonable time after he insured with the Ontario Mutual, notify the defendants thereof? A. No. Q. Was the notice thereof given by the plaintiff to the defendants reasonably sufficient? A. Yes, as far as he knew."

Upon the findings of the jury, the learned Judge directed judgment in favour of the plaintiff.

In Michaelmas Sittings, MacMillan (of London) moved on the findings to set aside the judgment for the plaintiff and to enter judgment for the defendants.

During the same sittings, December 1, 1886, MacMillan supported the motion. The statutory conditions are made applicable to mutual insurance companies by 44 Vic. ch. 20, sec. 8 (0.), and by the 8th condition the defendant should have been notified of the subsequent insurance, and their assent obtained. The policy was therefore avoided. Also under sec. 39 of the Mutual Act the subsequent insurance rendered the defendants' policy void. There was no consent of the directors signified by endorsement on the policy, signed by the secretary or other officer authorized to do so, or otherwise acknowledged in writing. Sec. 40 cannot assist the plaintiff, as no sufficient notification was given to the defendants upon which their assent within the two weeks could be presumed. The letter written to the defendants was clearly insufficient, as neither the company in which the insurance was effected, nor the sum insured was given, and the defendants in their reply inform the plaintiff of the insufficiency of the notice; but no further notice was ever given by the plaintiff. He referred to Phillips v. Grand River Farmer's Mutual Ins. Co., 46 U. C. R. 334; Compton v. Mercantile Ins. Co., 27 Gr. 334; Harris v. Waterloo Mutual Fire Ins. Co., 10 O. R. 718; Smith v. City of London Ins. Co., 11 O. R. 38; Billington v. Provincial Ins. Co., 3 S. C. R. 182; McQueen v. Phanix Mutual Fire Ins. Co., 4 S. C. R. 660,685; McCrae v. Waterloo County Mutual Fire Ins. Co., 1 A. R. 218. The argument proceeded on other

points, but as the judgment does not turn on them they are not given.

Maclennan, Q.C., and Jacobs, contra. The defendants' company is a mutual company, and the conditions affecting it are prescribed by R. S. O. ch. 161. Section 39 provides that the insurance shall be void unless the double insurance subsists with the consent of the directors endorsed on

the policy. Section 40, however, provides that after

notification the additional insurance shall be deemed to be assented to unless the company so notified signify their dissent in writing within two weeks. The plaintiff here did notify the company, and there has been no dissent. The notice complied with the statute. All that the statute requires is, that the company should be notified that there is a further insurance. It is not necessary to give the name of the company and the sum insured. The company, if they wished, could have dissented within the two weeks, but this they have never done: Dafoe v. Johnstown District Mutual Ins. Co., 7 C. P. 55; Bruce v. Gore District Mutual Fire Ins. Co., 20 C. P. 207: Gilchrist v. Gore District Mutual Fire Ins. Co., 34 U. C. R. 15; Mason v. Andes Ins. Co., 23 C. P. 37; Clarke on Insurance, 162; Kimball v. Howard Fire Ins. Co., 8 Gray 33; Phillips v. Grand River Farmers' Mutual Ins. Co., 46 U. C. R. 334; Compton v. Mercantile Ins. Co., 27 Gr. 334.

December 24, 1886. GALT, J.-The condition set forth in the defence is a statutory condition. This is a condition. applicable to all fire insurance companies, and may be varied by the company; but in cases of mutual insurance companies, by the 39th section of "An Act respecting mutual fire insurance companies," R. S. O. ch. 161, it is positively enacted: "If an insurance subsists by the act or with the knowledge of the insured in the company and in any other office at the same time, the insurance in the company shall be void, unless the double insurance subsists with the consent of the directors, signified by endorsement on the policy, signed by the secretary or other officer authorized to do so, or otherwise acknowledged in writing."

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This condition is therefore absolute and cannot be varied by the company. It enacts that if there is a double insurance which exists without the consent of the directors signified in the manner indicated, the policy shall be void. It was proved there was a double insurance existing at the date of the fire and no such consent had been given, and it was found by the jury that the plaintiff did not within a reasonable time notify the defendants thereof.

It does not, in my opinion, signify whether the plaintiff had or had not notified the defendants within a reasonable time; by the statutory provision, if the plaintiff without the assent of the directors effects a further insurance, the policy is void while such additional insurance exists without such consent.

It is true the 40th section enacts: "Wherever notification in writing has been received by a company from a person already insured of his having insured an additional sum on the same property in some other company, the said additional insurance shall be deemed to be assented to unless the company so notified within two weeks after receipt of such notice signify to the party in writing their dissent."

In the present case the notice to the defendants did not mention either the additional sum for which the insurance had been effected or the company with which it had been so done. Immediately upon receipt of the notice the defendants replied calling the plaintiff's attention to these omissions. It is manifest that there was not any consent on their part, and before any reply was received by them the fire occurred--the notice was sent on the 8th March and the fire occurred on the 17th or 18th, so that no question of implied consent under the 40th section can arise.

But, in my opinion, no proper notice was ever sent. It is true the jury have found in answer to the question: "Was the notice thereof given by the plaintiff to the defendants reasonably sufficient?" "Yes, as far as he knew;' but the knowledge of the plaintiff as to the effect of the