Ayers v. Continental Ins. Co.
| Decision Date | 01 December 1919 |
| Docket Number | No. 13383.,13383. |
| Citation | 217 S.W. 550 |
| Parties | AYERS v. CONTINENTAL INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.
"Not to be officially published."
Action by Charles Ayers and another against the Continental Insurance Company. From a judgment for the named plaintiff, defendant appeals. Affirmed conditionally, on remission of attorney's fee.
Fyke & Snider and Fenton Hume, all of Kansas City, for appellant.
Barnett & Weatherby, of Kansas City, for respondent.
This is an action on a policy of fire insurance for $2,500 on a building owned by plaintiff Ayers. Plaintiff Strong had a mortgage on the building securing a loan for $2,500 made by him to plaintiff Ayers. Plaintiff Strong on settlement with Ayers released the mortgage, and the court, just before the argument, announced that plaintiff Strong "was out of the case," and if the finding was against defendant it would be in favor of Ayers alone. The judgment was for him for the amount of the policy and interest and also for an attorney's fee for $250.
The policy contained a printed blank that in case of a mortgage on the property the "loss, if any, payable to John Doe, mortgagee." This was followed in the case of a mortgage prior to Strong's in which it was recited that "loss, if any, under this policy shall be payable to A. M. Wood as mortgagee as interest may appear. * * * This provision and this first mortgage seem to have dropped out of the case.
Afterwards Ayers desired to borrow $2,500 of plaintiff Strong secured by a second mortgage and further insurance on the property in that sum. To that end Ayers executed the following instrument:
"The interest of Charles Ayers as owner of property covered by this policy is hereby assigned to F. F. Strong subject to the consent of the Continental Insurance Company."
The policy was sent to defendant's agent for consent to that assignment, and he indorsed consent in these words:
"The Continental Insurance Company hereby consents that the interest of Charles Ayers as owner of the property covered by this policy be assigned to F. F. Strong."
Evidence was received over defendant's objection, explaining this assignment to Strong to mean not an absolute transfer as though Strong had become owner of the property, but merely to protect him in his mortgage by the policy in case of loss. Defendant objected on the ground that it could not know what Ayers and Strong intended and could only look to the terms of the assignment to which it consented. We think the court right in allowing the real...
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