Page:Federal Reporter, 1st Series, Volume 5.djvu/687

WILSON V. QTJEEn'S INS. CO. OF LIVEEPOOL Jfc LONDON. 675 �It was a condition of the application to the Lycoming Com- pany that the policy was not to go into effeot uûtil the stip- ulated cashpremium wàs paid; and it wasa provision of the policy that it should become void if the assured should make default for 30j.days in payment ; of any assessment which might be made on the premiuminote. This policy also con- tained a condition that it should be void if there was other insurance on the property not disclosed and assented to. �The plaintiff did not pay the cash premium to the Lycom- ing Company, but Young paid it for him. This he did with- out express authority from the plaintiff, but there was some evidence of implied authority. The Lycoming policy; was never delivered to the plaintiff, but was retained by Yoiing; the agent of the Lycoming Company. An assessment on the premium note was made in May, 1878, and notice mailed to the plaintiff. Whether or not he received the notice did not appear, but he never paid the assessment. The plaintiff did nothing in recognition of the existence of a oontract of insur- ance with the Lycoming Company, and he testiûed that the whole matter had passed from his mind until after his prop- erty was destroyed by fire in December, 1878. Soon after the fire the Lycoming Company, upon first leaming of the prior insurance, marked their policy "cancelled." �At the trial several decisions were cited to show that the plaintiff was entitled to peremptory instructioùs in his favor upon the ground that, conceding the second oontract of insur- ance to have been consummated, the policy was void under its clause against prior insurance, and the first policy, there- fore, was not invalidated by the second. ; But it seems to the court that it was not necessary to put the case upon dis- putable ground when there was in the case an element not to be found in any of the reported cases, via., the element of mutual mistake, which avoided the second policy ah initia. Therefore, the court charged the jury that if they found that the agent of the Lycoming Company and the plaintiff aoted under a mutual misapprehension as to the existence of a prior policy, both hona Jlde, assuming that the property was ����