Cole v. Niagara Fire Ins. Co.

• Decision Date: 24 June 1907
• Citation: 126 Mo. App. 134,103 S.W. 569
• Parties: COLE v. NIAGARA FIRE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

103 S.W. 569

126 Mo. App. 134

COLE v. NIAGARA FIRE INS. CO. OF NEW YORK.

Kansas City Court of Appeals. Missouri.

June 24, 1907.

Rehearing Denied July 8, 1907.

1. INSURANCE — FIRE POLICY — SOLE AND UNCONDITIONAL OWNERSHIP — WHAT CONSTITUTES.

One contracting to purchase property, and as part of the consideration assuming to pay notes owing by the vendor and secured by a deed of trust on the property, is not before payment of the notes or the balance of the price the sole and unconditional owner of the property within the meaning of a fire insurance policy, providing that the policy shall be void if the interest of the insured be other than an unconditional and sole ownership.

2. SAME.

One to whom a fire insurance policy is made payable as his interest may appear cannot recover thereon, where the policy is made in the name of another and without the latter's knowledge or consent.

Appeal from Circuit Court, Jackson County; Jackson L. Smith, Special Judge.

Action by W. C. Cole against the Niagara Fire Insurance Company of the city of New York. Judgment for defendant, and plaintiff appeals. Affirmed.

C. S. Osley and L. W. Byram, for appellant. Meservey, Pierce & German, for respondent.

BROADDUS, P. J.

This is a suit on a fire insurance policy issued to Mrs. Allia E. Clark on a building erected on two certain lots in Kansas City, Mo., the amount of the insurance being $2,045.35. At the time of the issuance of the policy the title to the lots was in the Dudley Realty Company. The latter on the 25th of May, 1903, contracted for a sale to her of said lots for a consideration of $480. She paid $20 in cash, and agreed to pay $10 monthly until she paid the sum of $250, and for the balance of the consideration she assumed to pay two notes for $115 each executed by the realty company to Joseph Wenzel, and which were secured by a deed of trust on said lots. After the purchase by Mrs. Clark of the lots, she contracted with the plaintiff to erect a building thereon, for the cost of which, August 22, 1903, she executed a note payable to him for the sum of $2,405.35, bearing 8 per cent. interest, and due November 1, 1903. On said last-named date, and after the execution of the note and deed of trust to him, the plaintiff went to the office of the agent of the defendant, and exhibited an insurance policy issued to Mrs. Clark for an improvement on the lots, and asked for a new policy for the sum of $2,000 on the building he had erected, which was issued in the name of Mrs. Clark, and the former policy was canceled. This was done without the authority of Mrs. Clark, who had no knowledge of the matter whatever and to whom the policy was not delivered before the building was destroyed by fire on the 29th of October, 1903. On November 4, 1905, the deed of trust from the realty company was...