Agric. Ins. Co. of Watertown v. Morrow
| Decision Date | 06 February 1895 |
| Citation | 62 N.W. 212,43 Neb. 788 |
| Parties | AGRICULTURAL INS. CO. OF WATERTOWN v. MORROW. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where there were proofs which tended to show the existence of a mortgage on property when it was insured, and that there was such knowledge of the existence of such mortgage as tended to show a waiver of that condition of the policy which rendered its provisions void if there existed a mortgage when such policy issued, held erroneous for the district court, after summarizing what facts might be deemed a waiver of such existing mortgage, to state that if these facts were established the provision of the policy as to incumbrance was eliminated therefrom, when there had been proof of a mortgage having been made after the policy had been issued, in respect to which mortgage the condition of the policy as to the forfeiture was, by its terms, just as applicable as to an existing mortgage.
Error to district court, Lancaster county; Hall, Judge.
Action by Jacob A. Morrow against the Agricultural Insurance Company of Watertown, N. Y. Judgment for plaintiff, and defendant brings error. Reversed.Adams & Scott, for plaintiff in error.
J. L. Caldwell and W. S. Hamilton, for defendant in error.
The defendant in error recovered a judgment against the plaintiff in error, in the Lancaster county district court, on account of damages occasioned by fire to the insured household goods and other personal property of the defendant in error. The policy was dated January 21, 1891. The fire was on May 20th, following. The duly-authorized agent of the insurance company was W. I. Fryer, who, by an offer of 15 per cent. commission upon premiums, had induced L. Marshall to solicit insurance for him, and, among other risks, to secure that of defendant in error. Among other defenses urged was one which, in this connection, may readily be disposed of; and that defense was that part of the property, for the damage of which a claim is made, was never owned by the insured. There was a note given for a certain sum of money due on the purchase price of a piano, in which note it was stipulated that the ownership of the piano should be held by the payee until the full payment of said note. This note, however, was dated May 11, 1891, and no recovery was sought for damages in respect to the aforesaid piano. As was done in the district court, therefore, this musical instrument may now be dismissed from consideration.
Complaint is made that proof was permitted that, with knowledge of the existence of a chattel mortgage, the policy in question was issued by the agent of plaintiff in error. No assignment was made of this in the petition in error, and it, therefore, is entitled to no consideration. When this mortgage fell due, the defendant in error was unable to pay the sum secured by it; and thereupon Mr....
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