City Sav. Bank v. Whittle

• Decision Date: 12 March 1886
• Citation: 63 N.H. 587,3 A. 645
• Parties: CITY SAV. BANK v. WHITTLE and others.
• Court: New Hampshire Supreme Court

3 A. 645

63 N.H. 587

CITY SAV. BANK

v. WHITTLE and others.¹

SUPREME COURT OF NEW HAMPSHIRE.

Filed March 12, 1886.

Assumpsit, to recover on a promissory note, payable to the plaintiff on demand', and also for cash paid for premiums on a policy of life insurance. The note was signed by the defendants, J. P. Whittle, who was principal, and by his minor son, Harry F. Whittle, who was only a surety, and never received any of the money, or any benefit of the loan to his father. At the time the note was given J. F. Whittle deposited with the bank as collateral security a policy of insurance on his life, payable to his son Harry. Harry executed to the bank, under seal, an assignment of all his right, title, and interest in said policy as security for said note. J. F. Whittle also executed an assignment, under seal, of the policy to the bank, reciting that he had always considered the policy his property, subject to his control, for the reason that he was so informed by the agent who took his application; that it was taken without the knowledge of his son; and that the premiums have been paid exclusively by him. After the loan was made several premiums becoming due were paid by the bank at J. F. Whittle's request. The policy was an endowment policy, and when it became due, in 1880, the company refused to pay it to the plaintiff. Parker, the trustee, was appointed guardian of Harry. The policy was turned over to him, and the company paid him the amount due on it. Harry became of age about eight months before the suit was brought, but has never promised to pay the plaintiff's demand since the note was given. J. F. Whittle was defaulted, and Harry pleaded a special plea of infancy. Reserved.

Mr. Burns, for plaintiff.

E. E. Parker and Mr. Stevens, for defendants.

CLARK, J. As H. F. Whittle signed the note as surety, and received no benefit from it, his plea of infancy is a defense to the note. The beneficial interest in the life insurance policy, procured for his benefit, and made payable to him, became vested in him when the policy was issued. Kimball v. Gilman, 60 N. H. 54; Stokell v. Kimball, 59 N. H. 13; Bowers v. Parker, 58 N. H. 565; May, Ins. § 392. His father's assignment gave the bank no title to the proceeds of the policy. The minor's assignment, though voidable, was valid until it was disaffirmed by him. The bank was rightfully in possession of the policy, and the assignment was an implied request and authority to do what was necessary to keep it...