Mackay Co. v. British American Assur. Co.

Mackay Co. v. British American Assur. Co.

The 300‑foot warranty was a condition (a new/varied statutory condition) falling within the New Brunswick Fire Insurance Policies Act and was not validly incorporated because statutory formalities were not followed; additionally, because the insurer's agent inspected and reported the risk on which the policy and...

Source-derived case information.

Citation
[1923] SCR 335
Parties
Plaintiff/appellant: W. Malcolm Mackay Company; Defendant/respondent: British America Assurance Company
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
3 April 1923
Procedural Posture
Civil Appeal — Fire Insurance / Appeal to the Supreme Court of Canada From the Appeal Division of the Supreme Court of New Brunswick
Outcome
Appeal allowed.
Legal Topics
Fire Insurance, Warranty Versus Condition, Statutory Conditions and Variations, Agent Knowledge and Representation, Estoppel by Representation, Policy Construction (contra Proferentem)
Source Language
english
Insurance Law Contract Law Equitable Estoppel Statutory Interpretation Fire Insurance Warranty Versus Condition Statutory Conditions and Variations Agent Knowledge and Representation +2 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

W. Malcolm Mackay Company

Plaintiff/appellant

British America Assurance Company

Defendant/respondent

Procedural Posture

Civil Appeal — Fire Insurance / Appeal to the Supreme Court of Canada From the Appeal Division of the Supreme Court of New Brunswick

Legal Issues

  1. 1 Whether the 300‑foot "warranty" is a condition of the insurance contract or merely descriptive of the risk
  2. 2 Whether the clause, if a condition, complied with the Fire Insurance Policies Act (3 Geo. V, ch. 26) formal requirements for variations/additions to statutory conditions
  3. 3 Whether the insurer was estopped from relying on non‑fulfilment of the warranty because its agent inspected and reported the risk before issuing the policy

Ratio Decidendi

The 300‑foot warranty was a condition (a new/varied statutory condition) falling within the New Brunswick Fire Insurance Policies Act and was not validly incorporated because statutory formalities were not followed; additionally, because the insurer's agent inspected and reported the risk on which the policy and premium were based, the insurer was estopped from denying those reported facts; accordingly the appeal is allowed and judgment entered for the insured.

Court Disposition

Appeal allowed.

Orders

  • Appeal allowed with costs.
  • Judgment entered for appellant in the amount of $5,361.71 with interest and costs.