Smith v. Royal Ins.

This suit, which is on a valued policy of fire insurance upon appellant’s “leasehold interest” in certain property, is here for the fourth time. 1 The prior appeals were concerned with the question whether appellant had alleged and proved an insurable interest of a kind described in his policy, namely, an estate in the nature of a leasehold. On the last appeal we held that appellant had established his case in *223 that respect, but that the insurer should be given an opportunity to set up such affirmative defenses as might be available to it. The present appeal relates to the proof of these defenses.

The defenses — now interposed for the first time — are (1) misrepresentation, and (2) mutual mistake of fact. As to the first it is alleged that in applying for the policy appellant, through his broker, represented that he had an interest in the property which was terminable only upon the destruction of the house by fire or other casualty. Appellee further alleged that this representation was material to the risk, that it was false, that it was relied on, and that appellee was thus entitled to rescind. Upon the issue of mutual mistake, appellee alleged that the policy was written…