Colby v. Thompson

• Decision Date: 13 May 1901
• Citation: 16 Colo.App. 271,64 P. 1053
• Parties: COLBY v. THOMPSON et al.
• Court: Colorado Court of Appeals

64 P. 1053

16 Colo.App. 271

COLBY v. THOMPSON et al.

Court of Appeals of Colorado

May 13, 1901

Appeal from Arapahoe county court.

Action by Frank A. Thompson and another, as co-partners, against Charles E. Colby, to recover premiums on a fire policy. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Wm. T Rogers, for appellant.

Alfred Muller and Joshua Grozier, for appellees.

WILSON P.J.

Defendant Colby, sold certain improved property owned by him in the city of Denver to one J.W. Jones, and took a deed of trust thereon to secure the purchase money. The improvements were insured in certain fire insurance companies, represented by the plaintiff firm as agents, the insurance being evidenced by two policies of $3,000 each. Mr. Colby caused one of the policies to be assigned to Mr. Jones, and the other to be canceled, and rewritten to Jones, for $2,800. To each was attached, at the request of defendant, the mortgage clause so as to protect him in his deed of trust in case of loss. Very shortly before the expiration of the insurance, the plaintiffs renewed the insurance, issuing two policies in the same amount and same form as the previous ones, and mailed them to the defendant, Mr. Colby. Both the defendant and Mr Jones were at several times requested by plaintiffs to pay the premiums on these renewal policies, but, failing to do so, this suit was instituted to recover the amount of the premiums. The correctness of the general principles of law laid down in the brief of counsel for defendant cannot be disputed, but we do not think they are applicable to the case as presented by the facts. There was some evidence tending to show that a representative of plaintiffs called at Mr. Jones' residence previous to the issuance of the renewal policies, to see if he desired them issued; but, finding him absent, he stated his business to the wife of Mr. Jones, and was by her informed that Mr. Jones desired the insurance continued. There was no evidence, however, to show the authority of Mrs. Jones to act for her husband, nor any ratification by him of her assumed agency; and therefore it must be held that, even if the evidence offered were competent, it did not show that Mr. Jones authorized or requested the issuance of the renewal policies. It sufficiently appears, however, that Mr. Colby received the renewal policies, and delivered them to a member of Mr. Jones' family, and that to each of these policies was attached the mortgage clause, designed, as in the case of the original policies, to protect Mr. Colby in his deed of trust, which was still in force and unsatisfied, a part of which reads as follows: "That the insurance as to the...