Home Ins. Co. of New York v. Horrell

Decision Date14 February 1921
Docket NumberNo. 2736.,2736.
PartiesHOME INS. CO. OF NEW YORK v. HORRELL et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by the Home Insurance Company of New York against C. I. Horrell and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Henson & Woody, of Poplar Bluff, for appellants.

W. C. Keaton, of Dexter, and E. R. Lentz, of Poplar Bluff, for respondent.

FARRINGTON, J.

The plaintiff brought suit on an installment note given for a policy of insurance covering a period of four years. The note was for 8288, and the installments were 872 per year. Under the contract of insurance the plaintiff paid 672 cash and signed up an application for the insurance together with the installment note sued upon. It appears from the evidence that several months later there was a loss, covered by the policy, for which the defendants claimed against the insurance company, and which loss was settled and paid to defendants by the plaintiff. When the first installment in the note came due it was not paid by the defendants, and after some negotiation, which was over a year after the note had been made and the policy had been delivered, the first installment on this note was paid by the defendants. Nothing more was paid, and this suit is for the balance due on the note.

The defense made by defendants is that the policy did not conform in the amounts placed on the various items insured on the farm to those which were placed in the application for insurance, the claim being that the company reduced the amounts on the houses and combustible property and added such amounts therefrom reduced to other items which were less liable to be destroyed.

There is an attempt to plead a failure of consideration. The defendants give the excuse for paying the second payment, which was the first installment in the note, on the grounds, as they say, that the agent told them if they would pay that to the company it would cancel the insurance; defendants having written to the company complaining about the policy not being according to the terms of the application and asking for a cancellation.

Under the terms of this policy the mode of cancellation is expressly provided for, and it is admitted by defendants that they did not comply with the terms in this respect. It has been consistently held on this same contract that where the policy provides for a certain form of cancellation...

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