Arkansas Fire Insurance Company v. Wilson

• Decision Date: 03 March 1900
• Citation: 55 S.W. 933,67 Ark. 553
• Parties: ARKANSAS FIRE INSURANCE COMPANY v. WILSON
• Court: Arkansas Supreme Court

55 S.W. 933

67 Ark. 553

ARKANSAS FIRE INSURANCE COMPANY v. WILSON

Supreme Court of Arkansas

March 3, 1900

Appeal from Faulkner Circuit Court, JAMES S. THOMAS, Judge.

STATEMENT BY THE COURT.

This suit was brought by appellees to recover on a fire insurance policy. The defense was that the policy was void because of a violation of a provision of the policy "that if the property be unoccupied for more than fifteen days consecutively, the policy would be void, unless agreement therefor was indorsed on the policy;" also, because of a violation of the provision "that if the interest of the assured became other than the entire, unconditional unincumbered and sole ownership, the policy should be void unless agreement therefor was indorsed on the policy." The answer enumerates four particulars in which this provision was violated, namely: "First, that the property had been placed in the hands of a receiver, and was burned while in his hands; second, that at the July term 1896, of the Faulkner circuit court, judgments had been rendered against Wilson, which were liens on the property; third, that Wilson had sold the property before the fire; fourth, that at the April term, 1897, of the Faulkner probate court a judgment had been rendered against Wilson, as administrator, which was a lien on the property."

The cause was submitted to a jury, who, after hearing the evidence and instructions of the court, rendered a verdict in favor of the plaintiffs (appellees.) Judgment was entered, and this appeal duly prosecuted.

Judgment affirmed.

J. H. Harrod, for appellant.

The provision as to change of ownership is reasonable and valid. 62 Ark. 348; 63 Ark. 187: The mailing of appellee's acceptance of the proposition of Dunaway completed the sale. 47 Ark. 519. If the contract was made, the mere fact that it was subsequently abandoned by the parties would not prevent a forfeiture of the policy. 32 N.W. 514. The change of ownership was within the meaning of the clause in the policy, and worked a forfeiture of same. 59 Minn. 269; 2 Hun, 540. It was the duty of the court to declare that the letters completed a contract for sale. 2 Pars. Cont. 638 n. A judgment is an incumbrance. 40 Md. 620. The court erred in excluding the assignment and transfer of the policy by appellee. 25 Ark. 380. The questions upon which special findings are directed must be stated in writing. Sand. & H. Dig., § 5831.

Jno. G. B. Simms, E. A. Bolton, J. T. Young and Sam Frauenthal, for appellee.

There was no such change of ownership or interest as would avoid the policy in this case. 71 N.Y. 396; 14 Hun, 299; 1 May, Ins., § 276; 26 E. D. Smith, 206; 92 N.Y. 51; 101 Ind. 392. The decisions of the probate court on the motions to retax costs were not judgments, and are not encumbrances on the property. Freeman, Judg., § 13; 2 Black, Judg. § 407. Probate judgments are not liens upon real estate. Sand. & H. Dig., § 4200; 36 Ark. 257. The question as to whether or not there was a sale of the property was fairly submitted to the jury upon proper instructions, and their decision is final. An agreement to sell is not a change of ownership. 32 Neb. 645; 62 Ia. 83;59 Pa. St. 479; Biddle, Ins., § 206; Richards, Ins. § 147; 17 Ia. 176. There was not even such a contract as would be specifically enforced. 1 Ark. 421; 4 Wall. 513; 71 U.S. 435; 13 N.W. 506; 1 White & Tud. Lead Cas. Eq., pt. 2, 120 (Am. Notes).

OPINION

WOOD, J. (after stating the facts).

The propositions upon which appellant relies for a reversal are:

First. That conditions of the policy were broken, and the policy thereby forfeited, and upon the undisputed facts the court should have directed a verdict for defendant.

Second. That the court erred in not declaring that the evidence showed a sale of the property by Wilson to Dunaway.

Third. That the court erred in not giving the sixth instruction, asked by defendant.

Fourth. That the court erred in refusing to permit the defendant to introduce in evidence the judgments against Wilson.

Fifth. That the court erred in refusing to allow defendant to read in evidence the transfer of the policy to Kincheloe.

Sixth. That the court erred in directing the jury to find a special verdict as to whether there had been a sale of the property.

We will consider these in the order named.

It is contended that the policy was forfeited by a sale of the property to one Dunaway. The proof upon this proposition was substantially as follows: Dunaway testified that he bought the property from Wilson; that he write Mr. Wilson a letter making him an offer for the property, and received in answer the following letter:

"PETTUS, ARK., May 6, 1897.

"Mr. J. G. Dunaway. Kind Sir: I will take your proposition in regard to my place at Conway. I would have written to you sooner, but I saw Mr. Collier and Bolton and Young and they advised me to wait until I heard from the Building & Loan. So I will be up to Little Rock about next Sunday or Monday, and I will stop and see you if you are in. I told your pa that I would let you have the place at your figures. So I will see you soon. Yours truly, [Signed] J. B. WILSON."

He says he paid Wilson $ 2.50 on the property when he bought it; that this payment was made on the 13th of May, 1897,--two days before the fire; that on the 12th of November, 1897, Wilson tried to get him to take the money back that he had paid. He did not take possession or exercise any control over the property. On May 17, 1897, he wrote Wilson the following letter:

"May 17, 1897.

"J. B. Wilson, Esq., Pettus, Ark.

"Dear Sir: I suppose that you have heard before this that your house was burned on last Friday night. I believe pa wrote me, so I guess this will break into our trade. There was a mistake or two in the deed anyway, and I had prepared new deed for you to sign, but will not send it now until matters are settled. I understand that you have $ 1,500 insurance on it; so, if you can get that, it will no doubt help you out. Pa stated that there was a man by the name of Jones in the house at the time, and that it was not known how the fire caught. Please bring the deed in with you when you come.

"Yours truly, J. G. Dunaway."

Dunaway says, he supposes he used the language "your house was burned" in the letter just hurriedly, in writing same; says he had written a deed for the property, and Wilson had consented to the terms of it, but had never signed and returned it. The proposition he made Wilson was to give him $ 100, and assume the mortgage that the building and loan association held, and that was the proposition he answered in the letter of May 6th. Dunaway said he never wrote the building and loan association a letter agreeing to assume the Wilson mortgage, and never told any one representing it that he would assume the mortgage, but considered that he had assumed it. He never took any receipt for the $ 2.50 he paid Wilson at the time of the trade; never tried to enforce specific performance.

Wilson on this point testified that he never sold the house to Dunaway; that he borrowed $ 2.50 from Dunaway, but did not accept it as payment for the house. He and Dunaway were just talking about a trade. He offered to pay the $ 2.50 at one time when there were no witnesses, and at another time when he took witnesses with him, but Dunaway would not take it.

At plaintiff's request the court instructed the jury as follows: "The court instructs the jury that if you believe from the evidence that the defendant did insure the plaintiffs' frame building on the lot described in the policy for $ 1,500 against direct loss by fire from September 29, 1894, to September 29, 1897, and that said building was, between said dates, totally destroyed by fire, and that no condition contained in the policy of insurance was violated, then you will find for the plaintiffs the amount for which said building was insured by said policy." And at the defendant's request, on this point, as follows: "(3.) You are instructed that if you find from the evidence that at any time after the issuance of the policy, and before the fire, the interest of Mr. Wilson in the insured property became other than entire, unconditional, unincumbered and sole ownership, you will find for the defendant (except the mortgage of the plaintiff building and loan association)." But refused to grant defendant the following requests: "(5.) You are instructed that the evidence shows that Wilson sold the property to Julian and Sharp Dunaway, and that such sale forfeited the policy, unless you find that the defendant's agreement or consent was indorsed on the policy, or was otherwise given. (6) If you find from the evidence that, after the issuance of the policy, and before the fire, Julian and Sharp Dunaway made to J. B. Wilson a written offer to buy the property insured for $ 100, and assuming the mortgage to the building and loan association, and that J. B. Wilson before the fire accepted the offer, in writing, you are instructed that this avoided the policy, unless defendant consented thereto, and plaintiffs cannot recover in this action."

The instruction given at plaintiffs' request was proper, as was also No. 3 given at the request of the defendant. No. 5 was properly refused. The evidence, at most only showed an executory contract for the sale of the property. There was no sale, but only an offer on the one side and an acceptance of such offer on the other, but the absolute sale could not take place until the execution and delivery of a deed to the property. But as to whether or not the written offer of Dunaway to buy the property, and the acceptance thereof by Wilson, constituted a breach of the policy which barred recovery, was a question for the court, and not for the jury. The offer was shown to have been...