Reliance Hathaway vs. Trenton Mutual Life and Fire Insurance Company, 11 Cush. 448

Merrick, J. The policy upon which this action was brought was granted and accepted upon the express condition that it should be void and of no effect, if the assured, without the consent of the defendants previously obtained and indorsed upon it, should pass beyond the settled limits of the United States. In returning from California he did go beyond those limits, and the policy was thereby rendered invalid, and the defendants were discharged from all liability upon it, unless, as the plaintiff contends, the company gave their consent that he should do so.

The consent upon which the plaintiff relies, is contained in the words following, which were indorsed upon the policy: “ Caleb Hathaway,” the assured, “ has permission to make one voyage out and home to California in a first-rate vessel, round Cape Horn or by Vera Cruz.” This is not a general license, but a carefully defined and restricted permission. The company were under no obligations to give any consent. It depended entirely upon their own will, and upon a new bargain to be made, whether they would give or withhold it.

In yielding it, they had a right to fix their own terms and to circumscribe it within such limitations as they deemed expedient. In this case they did exercise that right. They determined and declared how far they would relax the stringency of the condition. To the extent conceded him, the assured was relieved from its obligation and effect. He was allowed, without infringing the contract or incurring the consequences of a breach of its condition, to make one voyage to California, out and home, in a first-rate vessel. But he was restricted to two routes.

He was given the choice of the voyage round Cape Horn or the passage by Vera Cruz. He did not avail himself, as he might safely have done, of either of these routes, but returned from California by way of Panama and Chagres. For that departure from the settled limits of the United States, and the transportation of himself into those places, no consent was given by the defendants; and therefore it was a breach of the condition, which rendered the policy void. It is of no consequence that the route home taken by the assured was, or may have been, as the plaintiff offered to prove, the safest and shortest.

The policy excluded him, if he-would avail himself of the provisions and of the assurance contained in it, from being governed by what was advisable and expedient. It fixed the terms upon which the promise should be binding, and upon which it should be annulled. By those terms the parties are bound. There having been a breach of the condition the contract is thereby rendered void. See Barrett v. Union Mutual Fire Ins. Co. 7 Cush. 175. Plaintiff nonsuit.