Cary Mfg. Co. v. Acme Brass & Metal Works

• Decision Date: 01 May 1934
• Citation: Cary Mfg. Co. v. Acme Brass & Metal Works, 215 Wis. 585, 254 N.W. 513 (Wis. 1934)
• Parties: CARY MFG. CO. v. ACME BRASS & METAL WORKS ET AL.
• Court: Wisconsin Supreme Court

215 Wis. 585

254 N.W. 513

CARY MFG. CO.

v.ACME BRASS & METAL WORKS ET AL.^a1

Supreme Court of Wisconsin.

May 1, 1934.

Appeal from a judgment and orders of the Circuit Court for Winnebago County; Fred Beglinger, Circuit Judge. Affirmed.

This action was commenced on February 6, 1933, by the Cary Manufacturing Company against the Acme Brass & Metal Works et al. for relief under section 269.56, ordinarily referred to as the Declaratory Judgments Act, to determine the title to funds then on deposit with the circuit court of Waupaca county, which were the proceeds of certain insurance policies. Judgment was entered on the 6th day of May, 1933, establishing title to the funds in the defendants, from which the plaintiff appeals.

On or about August 26, 1929, the plaintiff purchased, land, plant, and equipment belonging to the Acme Brass & Metal Works, hereinafter called the defendant corporation. At the time of the purchase there was a mortgage upon the premises of $15,000 in favor of Grace Braun, Josephine Yohr, and Theresa Bean, heirs of J. N. Braun, deceased. By agreement between the defendant corporation, the plaintiff, and the mortgagees, the time of payment of the mortgage indebtedness was extended so as to coincide with payments to be made by the purchaser under the land contract. This extension agreement provided that insurance in the amount of $20,000 should be carried by the plaintiff, payable to the mortgagees as their interest might appear. The land contract also provided that insurance should be carried by the plaintiff to at least 80 per cent. of the insurable value of the property. The insurance policies contained the following clause:

“Payable to the Acme Brass & Metal Works with the following endorsements:

Loss if any to be adjusted only with the insured named herein and payable to the insured and Theresa Bean, Grace Braun and Josephine Yohr as their respective interests may appear subject nevertheless to all the terms and conditions of the policy.

Notice is hereby accepted that the Cary Manufacturing Company who is purchasing the property insured under this policy under a contract for deed of the Acme Brass & Metal Works and loss if any under said policy shall first be payable to said Acme Brass & Metal Works as its interest may appear and the residue if any to the Cary Manufacturing Company.”

Pursuant to the contract insurance in the sum of $21,500 was carried, being $8,000 on the two-story and basement frame factory, $11,500 on machinery and equipment originally belonging to the defendant corporation or replaced by the plaintiff, and $2,000 on patterns, models, moulds, and forms originally belonging to the defendant corporation.

The building was destroyed by fire on the 28th day of December, 1932, and the building and property insured were so damaged that the insurance companies paid the full sum of $21,500 as a total loss. The plaintiff company had insurance of its own which is not involved on this appeal. The plaintiff company was not in default in its payments on the land contract. The insurance was paid and checks made payable to all three of the parties interested. Such checks are now on deposit with the clerk of the circuit court for Waupaca county. There were negotiations between the parties with respect to the disposition of the proceeds derived from the policies. The parties were unable to agree with respect to the disposition, and this proceeding was begun to determine the title to the fund.

The defendants answered the petition, and upon the record the court held that the fund in question should be paid first, sufficient to the mortgagees, to be held in trust by them to extinguish the installments on the mortgage debt; the remainder of the insurance moneys to be paid to the Acme Brass & Metal Works in trust to apply on the land contract according to its terms. Judgment was entered accordingly in favor of the defendants against the plaintiff.

In his briefs and upon the oral argument, counsel for plaintiff argued at considerable length that, the plaintiff having restored the property, it was entitled to have the proceeds of the policies of insurance applied at least in part to the expense of such restoration. In the view which we take of the law of this case, it is not necessary to set out the facts upon which that argument is based.

John C. Hart, of Waupaca, and Francis C. Cary, for appellant.

Lloyd D. Smith, of Waupaca, and Benton, Bosser & Tuttrup and A. W. Parnell, all of Appleton, for respondents.

ROSENBERRY, Chief Justice.

The contention of the plaintiff company, briefly stated, is that it is necessary in the continued operation of the plaintiff's business that it have the benefit of the proceeds of the policies of insurance for the purpose of restoring the plant so as to make the same useful; that it has as it alleged restored the same; that the proceeds of the policies, particularly that part thereof which it claims became due by reason of the destruction of the equipment, should be so...