Bank of French Broad v. Bryan

• Decision Date: 22 September 1954
• Docket Number: No. 94,94
• Parties: The BANK OF FRENCH BROAD, Inc. v. Mrs. Blanche R. BRYAN, Administratrix of the Estate of Wayne Bryan, and Ralph Ramsey.
• Court: North Carolina Supreme Court

Page 485

83 S.E.2d 485

240 N.C. 610

The BANK OF FRENCH BROAD, Inc. v. Mrs. Blanche R. BRYAN, Administratrix of the Estate of Wayne

Bryan, and Ralph Ramsey.

No. 94

Supreme Court of North Carolina.

Sept. 22, 1954

Carl R. Stuart, Marshall, and E. L. Loftin, Asheville, for plaintiff-appellant.

G. D. Bailey and W. E. Anglin, Burnsville, for defendants-appellees.

BOBBITT, Justice.

Appellant, in its brief, does not deal separately with each challenged allegation. It presents its position as if the case were before us on demurrer to defendants' Further Answer and Defense, challenging the sufficiency of defendants' pleading to constitute a defense rather than the propriety of particular allegations.

As stated by Ervin, J.: 'A motion to strike an allegation from a pleading for irrelevancy admits, for the purpose of the motion, the truth of all facts well pleaded in the allegation, and any inferences fairly deducible from them. But it does not admit the conclusions of the pleader. ' Penn Dixie Lines v. Grannick, 238 N.C. 552, 556, 78 S.E.2d 410, 413. Appellant concedes and indeed cites this statement of the applicable rule.

Assuming sufficient interest or other recognized consideration, it is generally held that where one agrees to procure the issuance of insurance on the property of another, affording protection against designated risks, and fails to do so, he will be held liable, within the amount of the proposed insurance, for the loss attributable to his default. This Court has recognized the breach of such agreement as a basis of liability where the parties to the agreement were in the following relationships:

1. In actions by a property owner against an insurance agent or broker. Elam v. Smithdeal Realty & Insurance Co., 182 N.C. 599, 109 S.E. 632, 18 A.L.R. 1210; Case v. Ewbanks, Ewbanks & Co., 194 N.C. 775, 140 S.E. 709; Boney v. Central Mutual Ins. Co., 213 N.C. 563, 197 S.E. 122; 29 Am.Jur. p. 130, Insurance, secs. 108, 109; 44 C.J.S., Insurance, § 172(a), page 861; Annotations: 18 A.L.R. 1214; 29 A.L.R.2d 171.

2. In actions by a vendee against a vendor in relation to personal property subject to a conditional sales contract. Mack International Motor Truck Corp. v. Wachovia Bank & Trust Co., 200 N.C. 157, 156 S.E. 787; Meiselman v. Wicker, 224 N.C. 417, 30 S.E.2d 317; 23 N.C.L.Rev. 64.

3. In actions by a property owner against a warehouseman. Interstate Folding Box Co. v. City Transfer & Storage Co., 210 N.C. 829, 186 S.E. 155.

4. In actions by the owners of real property, subject to deed of trust, against the owners of the secured debt. Dixon v. Osborne, 204 N.C. 480, 168 S.E. 683; Crouse v. Vernon, 232 N.C. 24, 59 S.E.2d 185; 36 Am.Jur. p. 852, Mortgages, sec. 328; 59 C.J.S., Mortgages, § 328(b), page 449.

To enforce such liability the plaintiff, at his election, may sue for breach of contract, or for negligent default in performance of duty imposed by contract. Elam v. Smithdeal Realty & Insurance Co., supra; 44 C.J.S., Insurance, § 172(b), page 863.

In Crouse v. Vernon, supra, plaintiff, a property owner, obtained a $2,500 construction loan from a bank. She secured her $2,500 note to the bank by deed of trust conveying the property on which she was building a house and gave additional security. Her house burned while in process of construction. She sued the bank official with whom she had dealt, the bank, and the trustee in the deed of trust. In dealings with the plaintiff, the named official was acting for the bank. In addition, however, there was allegation and evidence that the named bank official had a broker or agency relationship with certain (unnamed) fire insurance companies. Plaintiff recovered judgment against the bank official individually and against the bank, predicated upon the jury's verdict to the effect that the bank official agreed to procure and have issued to plaintiff a fire insurance policy in amount of $4,500 covering the house being built on plaintiff's property and failed to do so. The allegations of the complaint as disclosed by the original...