Plum Trees Lime Co. v. Keeler

• Decision Date: 06 July 1917
• Citation: 92 Conn. 1,101 A. 509
• Court: Connecticut Supreme Court
• Parties: PLUM TREES LIME CO. v. KEELER.

101 A. 509

92 Conn. 1

PLUM TREES LIME CO.

v. KEELER.

Supreme Court of Errors of Connecticut.

July 6, 1917.

Appeal from Court of Common Pleas, Fairfield County; Howard B. Scott, Judge.

Action by the Plum Trees Lime Company against Samuel Keeler. Judgment for plaintiff, and defendant appeals. No error.

The plaintiff is a corporation organized under the statute of laws of Connecticut. This action is brought by Wilbur F. Tonilinson, Charles Kerr, and Alphaus A. Hathaway, its directors, acting as trustees for the purpose of closing up the business of the corporation pursuant to the provisions of sections 29 and 30 of chapter 194 of the Public Acts of 1903, regulating the voluntary dissolution of corporations. In August, 1910, the defendant was the owner of the premises described in the plaintiff's complaint, as amended, upon which was a ledge or deposit of limestone, with lime kilns and lime shed. On August 4, 1910, the defendant leased these premises to one Alfred P. Phillips, for a term of ten years from date, which premises, under a series of assignments of this lease, passed into the possession of the plaintiff on the 24th day of February, 1912. This lease provided that the lessee should keep the kilns, buildings, machinery, and plant thereon in good repair and should deliver up the same at the expiration of its tenancy in as good condition as they now are in, ordinary wear, fire, and other unavoidable casualties excepted. Subsequent to the 24th day of February, 1912, and up to the 8th day of October, 1914, the plaintiff was engaged in mining or quarrying limestone on these premises, and the burning, manufacturing, and preparing the same for market. At the time of the execution of this lease, and for a number of years prior thereto, these premises had been unoccupied and unused and the kilns and buildings had been grossly neglected. At the time these premises passed into the possession of the plaintiff, the plant thereon consisted of three lime kilns, constructed of noncombustible materials, to wit, exteriorly of brick and lined internally with fire brick, and the structures connected with the kilns built of wood were decayed and unsafe and not practicable for the uses required of them, and a lime shed practically dismantled by the removal of everything that could be carried away; the plant being unfit, inadequate, and insufficient for prosecuting the business of the plaintiff. The plaintiff, for the purpose of enabling it to carry on its business conveniently and efficiently, was compelled to erect and construct, and did erect and construct, various structures and appliances on the leased premises, at its own cost and expense, and for its own purpose and advantage. The structures erected by the plaintiff on these leased premises consisted of a wooden tower on top of the kilns, with a hoisting apparatus thereon for the purpose of hoisting their raw limestone and fuel to the top of the kilns, a platform on top of the kilns with a bridge leading therefrom to the hillside adjoining the kilns for the purpose of affording access thereto with teams and materials, an engine house and other structures and appliances adapted to the business of the plaintiff, costing in the aggregate about $2,500. The buildings, structures and appliances erected by the plaintiff on these premises were new, and did not replace other similar structures, but were radically different from those used by their predecessors in occupancy of the premises, and was an alteration in the method of handling the raw material and finished product in the plaintiff's business.

The plaintiff, desiring to protect its property on these premises, made application to the local agent of the Fidelity Phoenix Fire Insurance Company of New York, and the Phcenix Fire Insurance Company of Hartford, Conn., for insurance thereon. At the time of making such application, the plaintiff, by its president and general manager, informed the agent of the condition of the property desired to be covered by the proposed insurance; that the structures to be insured were the property of the plaintiff, and were located on real estate occupied under a lease from the defendant; and that it desired to have the policies issued in the name of the plaintiff, but they were informed by this agent that the policies could not be issued in the name of the plaintiff, but must be issued in the name of the defendant as owner of the land upon which the same were located. The plaintiff, relying upon the statement of the agent, caused the property of the plaintiff, located on these premises, to be insured for the sum of $600, under policy No. 329, issued by the Fidelity Phcenix Fire Insurance Company, and for the additional sum of $600, under policy No. 2295, issued by the Phcenix Fire Insurance Company, in the name of the defendant as beneficiary. The plaintiff paid the premium on these policies, retained the same in its possession, and it had no intention of insuring the property of the defendant, but intended to insure its own property located on the leased premises. The defendant was ignorant that these policies, Nos. 329 and 2295, had been issued until after the property insured thereunder had been destroyed by fire, when application was made to him by the plaintiff to execute a proof of loss as required by the insurance companies. The plaintiff, by its officers, requested the defendant to insure his buildings on these premises; but the defendant refused to do so. On October 8, 1914, the buildings, structures, and appliances on these premises belonging to the plaintiff and insured under the policies were destroyed by Are. At the time of the execution of the policies, and at the time of the loss occasioned by the fire, the plaintiff was the owner of the property insured under these policies. Upon proof of loss, the insurance companies adjusted the same, and paid the sum of $1,200 to the defendant, and the defendant retained the same.

On November 17, 1914, the plaintiff initiated proceedings for the dissolution of its corporate existence pursuant to the provisions of sections 29 and 30 of chapter 194 of the Public Acts of 1903, regulating the voluntary dissolution of corporations, and subsequent to that date the plaintiff ceased doing business as a going concern, and its directors have since that been acting as trustees in closing up the business of the corporation. All property belonging to the plaintiff is in the hands and under the control of its directors acting as trustees. The plaintiff, by its directors acting as trustees, made demand upon the defendant for the proceeds of the insurance policies, as a part of the assets of the company for the purpose of liquidating its indebtedness and closing up its business. Subsequent to the proceedings to the winding up the corporate existence of the plaintiff, the defendant offered to expend the proceeds of the policies in restoring the defendant's own buildings on these premises which were not insured under the policies. The defendant refused to pay over the proceeds of the insurance to the plaintiff. The proceeds of the insurance policies in the hands of the defendant are insufficient to restore the structures and appliances built by the plaintiff, to an efficient, workable condition. Immediately after proceedings were commenced to terminate the corporate existence of the plaintiff, its directors, acting as trustees, surrendered the possession of the leased premises to the defendant, and the defendant has since been in possession of the same.

Leo Davis, of Norwalk, for appellant. George Wakeman, of Danbury, for appellee.

RORABACK, J. (after stating the facts as above). The plaintiff, by its complaint, seeks to recover from the defendant the proceeds of two insurance policies described in the complaint. Judgment was rendered for the plaintiff...