Brennen v. Connecticut Fire Insurance Company
| Decision Date | 11 May 1903 |
| Citation | 74 S.W. 406,99 Mo.App. 718 |
| Parties | BEN R. BRENNEN, Respondent, v. CONNECTICUT FIRE INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Polk Circuit Court.--Hon. Argus Cox, Judge.
AFFIRMED.
Judgment affirmed.
Fyke Bros., Snider & Richardson for appellant.
(1) The chattel mortgage upon the stock of goods insured was not released nor satisfied, notwithstanding the promise that it would be. The debt was not paid, and the mortgage remained in full force. (2) The promise to release the mortgage was gratuitous, without consideration and not binding. (3) The chattel mortgage could not be released by verbal agreement. Secs. 4358 and 4360, R. S. 1899. (4) The existence of the chattel mortgage upon the property insured, contrary to the policy provisions, and contrary to the application warranty that the property was not mortgaged, rendered the policy void. Digby v. Ins. Co., 3 Mo.App. 603; Obermeyer v. Ins. Co., 43 Mo. 537; Boggs v. Ins Co., 30 Mo. 63; Walker v. Ins. Co., 62 Mo.App 209; Cook v. Ins. Co., 38 Mo.App. 582.
Johnson & Sea and Rechow & Pufahl for respondent.
(1) Where the insurance company has the same knowledge as to the condition of the title to the property as the insured, there can be no false representation. In this case there was in fact none. Ormsby v. Ins. Co., 72 S.W. 139. And this may be shown by parol evidence. Baile v. Ins. Co., 73 Mo. 372. (2) In this case there was in fact no incumbrance, the chattel mortgage having been released, upon the faith of which the plaintiff paid his money for the insurance. The bank would have been estopped from making any further claim against the property.
--The petition declares on a fire insurance policy on certain furniture and drugs. The whole amount of insurance was $ 1,200. It was shown that the property insured was destroyed by fire and that proof of loss had been made.
The liability of defendant for the loss is denied on the ground that the plaintiff in his written application for insurance on which the policy was issued stated that the said property was not incumbered, when, in fact, it was so incumbered by a chattel mortgage to the Bank of Bolivar for $ 421. The plaintiff testified that he effected the insurance through a Mr. Watson, defendant's agent at Bolivar, Missouri; that he made his application for it on the 19th day of October 1901; that he told Watson at the time of the mortgage, who then said to him: That he then went to a Mr. Faulkner, the cashier of the bank that held the mortgage and told him the circumstances, and that he could not get any insurance until the mortgage was satisfied and asked him if he would take his farm for it and release the stock of goods, to which he answered, "Yes, we will do that." It was made to appear that the bank held a lien on plaintiff's farm also for the debt mentioned in the mortgage. Plaintiff further testified that Faulkner, the said cashier, authorized him to tell Watson, defendant's said agent, that the bank claimed no mortgage on the property; that he so told Watson, who replied, "All right, I will write the policy." And that Watson, at one time before he got the policy and twice since, told him he had seen Mr. Faulkner, and that Faulkner told him that the mortgage was released on the stock of goods and fixtures. These statements of plaintiff stand undisputed. It is fairly deducible from all of plaintiff's statements that he was acting under the supposition that what Faulkner said to him about releasing the property insured and taking the farm for the bank's security was a release of the mortgage; and it is also fair to presume that Watson wrote the policy under the...
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