Yore v. Bankers' & Merchants' Mutual Life Ass'n
Before: Haven
Synopsis
Insurance — Venue of Action — Corporations — Place of Contract. — An action against an insurance corporation organized under the laws of this state may he brought and tried in the county where the contract of insurance was completed, and the corporation, defendant is not entitled to a change of the place of trial to the county where it has its principal place of business, if the contract was not completed therein, although the policy was there issued.
Id.—Policy Varying from Application — Proposal — Place of Acceptance— Completion of Contract.—Where an application for life insurance requested that the policy should be payable in accordance with a future will of the applicant, pending which the applicant desired to have it stand in favor of his lawful heirs, and the policy issued is made payable merely to his lawful heirs, there is no binding contract until the insured assents to the terms given in the policy by accepting the same, and the contract is to be considered as having been made in the county where the policy was accepted, and not in the county where it was issued.
Id. — Proposal for Insurance — Application — Wish as to Disposition of Proceeds. — The expression, in an application for insurance, of a “desire ” to dispose of the proceeds of the,policy in a certain manner is to be construed as a proposal for insurance in accordance with the expressed wish of the applicant.
Contracts — Assent. — Until all the terms of a proposed agreement have received the assent of both parties thereto, the negotiation is open, and imposes no obligation on either.
Id. — Acceptance of Offer. — An acceptance, to be good, must be such as to conclude an agreement or contract between the parties, to do which it must in every respect meet and correspond with the offer,, neither falling within or going beyond the terms proposed.,
De Haven, J. — Appeal from an order changing the place of trial.
The action is one to recover the amount named in a policy of insurance issued by the defendant, a corporation, on the life of one Peter Yore, and was brought in the superior court of Yuba County.
The defendant is a corporation formed and existing under the laws of the state of California, and its principal place of business is in the city and county of San Francisco.
By section 16, article 12, of the constitution of this state, plaintiffs are entitled to bring this action either in [612]the county where the contract was made, or in the county where the principal place of business of the defendant corporation is situated, and the only question for determination here is as to the place where the contract sued upon was made, the appellants claiming that it was made in the county of Yuba, while the respondent insists that it was made in the city and county of San Francisco.
The motion was heard upon affidavits. It appears from the affidavits filed on behalf of respondent that the deceased, Peter Yore, made application in writing to the agent of respondent at Marysville in Yuba County, for a life insurance policy, and the application was forwarded by said agent to San Francisco, and upon its receipt the officers of respondent issued and caused the policy sued upon to be mailed to the agent of the company at Marysville, with instructions to deliver it to said Yore.
1. It is claimed by the respondent that upon this state of facts the contract was, in judgment of law, made in San Francisco; and this would be so if the policy issued was in exact accordance with the terms proposed in the application. (May on Insurance, secs. 50, 66.) A policy which in its terms is different from the application is not a completed contract, and until accepted by the insured is no more than a proposal to contract, upon the terms stated in it. (Insurance Co. v. Young, 23 Wall. 85; May on Insurance, sec. 50; Ocean Ins. Co. v. Carrington, 3 Conn. 357.)
It appears to us from the affidavits used upon the hearing of this motion in the court below, that the policy as issued was not an unqualified acceptance of the terms embodied in the application of the deceased Yore. The application itself is not set out, but its terms sufficiently appear from the letter forwarding it to San Francisco, which letter is made a part of one of the affidavits filed by respondent. In this letter the defendant’s agent
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