City Mortgage & Discount Co. v. Palatine Ins. Co., Limited, of London, England
| Decision Date | 12 January 1933 |
| Docket Number | 6 Div. 274. |
| Citation | 145 So. 490,226 Ala. 179 |
| Parties | CITY MORTGAGE & DISCOUNT CO. v. PALATINE INS. CO., LIMITED, OF LONDON, ENGLAND. |
| Court | Alabama Supreme Court |
Rehearing Denied Mar. 2, 1933.
Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.
Action for breach of agreement to insure by the City Mortgage & Discount Company against the Palatine Insurance Company Limited, of London, England. Judgment for defendant, and plaintiff appeals.
Affirmed.
J. C B. Gwin, of Bessemer, for appellant.
Huey, Welch & Stone, of Bessemer, for appellee.
The defendant, appellee here, issued a fire insurance policy to Young McCray upon a certain building for a period of three years beginning the 2d day of May, 1927, and expiring May 2, 1930. The building is alleged to have been destroyed by fire June 7, 1931, more than a year after the expiration of the policy. The policy contained a clause in standard form making the loss payable to this appellee, as mortgagee, as its interest might appear.
The counts to which the demurrers were sustained proceed upon several theories: First, upon a breach of contract for a failure to renew the insurance for a period of three years under an agreement anterior to or contemporaneous with the issuance of the policy; second, for the breach of a contract and for the negligent failure to renew the policy under an agreement between the appellant mortgagee and an agent of the defendant to renew the policy made after the issuance of the policy but before the same expired; and, third, for the breach of a contract, express or implied, arising out of a local custom as to renewals of existing fire insurance policies.
The agreement relied on under the first theory, being anterior to or contemporaneous with the issuance of the policy, was ineffectual, unless incorporated in and made a part of the policy. Section 8371 of the Code of 1923.
The agreement set out under the second theory of the case, being subsequent to the issuance of the policy, was not controlled by said section 8371 of the Code 1923. As to whether or not such a contract could be by parol, or the agent averred had the authority to bind the company, or it was a mere option are questions we may pretermit as the action of the trial court in sustaining the demurrer to these counts must be affirmed for another reason. These counts set up an express agreement between the plaintiff and an agent of the...
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