ERROR
from the district court for Lancaster county. Tried below
before HALL, J. Reversed.
REVERSED.
Sylvester
G. Williams, A. B. Coffroth, Edward C. Wright and Flower
Peters & Bowersock, for plaintiffs in error.
Walter
J. Lamb and George A. Adams, contra.
OLDHAM
C. SEDGWICK, C. concurs. POUND, C. not sitting.
OPINION
OLDHAM, C.
This is
an action brought by Martha J. Shoemaker against the
Commercial Union Assurance Company, Limited, of London, the
Concordia Loan & Trust Company and Cornelia J. Longaker, but
for what purpose is not clearly stated.
The defendant in error, plaintiff below, in her
petition, after various recitals of past events, which, in
substance, were that in November, 1889, she had given a
mortgage to the Lombard Investment Company on certain
property in the city of Lincoln for $ 1,100, due in five
years thereafter, and as further security she had also
procured a policy of insurance on the property mortgaged for
a like period of five years, and had delivered this policy to
the Lombard Investment Company, and that afterwards this
mortgage had been sold and assigned to the defendant
Longaker; that on or about the maturity of this mortgage she
applied to the defendant Concordia Loan & Trust Company
through its agent at Lincoln, Nebraska, for an extension of
said mortgage for three years, which was granted on certain
conditions, not material to this discussion; after setting
out the clause of the mortgage that provides that if the
mortgagor fails to keep the mortgaged property insured for
the benefit of the mortgagee, then the mortgagee has the
right to take out a policy of insurance thereon, and charge
the premium to the mortgagor,--proceeds as follows:
"Defendants agreed to so insure the said property and
charge the same to plaintiff according to the terms of said
proviso in said mortgage above set out; that plaintiff was
thereafter informed by both defendants, the Commercial Union
Assurance Company, Limited, and the Concordia Loan & Trust
Company, that such insurance had been so taken out, and,
relying upon said information, so received, made no further
effort to insure the said property, but all the time
believing that the same was insured as by them stated, until
after the said buildings were completely destroyed, and
burned by fire, as hereinafter stated. 9. That at the time of
the maturity of the mortgage above mentioned, to-wit;
November 11, 1894, and for some time prior thereto, this
plaintiff was negotiating with the defendant, the Concordia
Loan & Trust Company, for an extension of said loan, and
did finally negotiate said extension; that the plaintiff at
the time of taking out said insurance in the Orient Insurance
Company, of Hartford, Connecticut, turned over
said policy to the Lombard Investment Company as mortgagee,
and the said Lombard Investment Company, as plaintiff is
informed and believes, turned the same over to the defendant
Cornelia J. Longaker at the time it sold and indorsed said
note and mortgage to her, or held the same for her benefit
thereafter, and the same was so held either by the said
Cornelia J. Longaker or the Lombard Investment Company until
its expiration and the maturity of said loan, unless the same
was turned over to the Concordia Loan & Trust Company by the
Lombard Investment Company; that during the negotiation for
the extension of said loan the plaintiff offered to renew
said insurance in the Orient Insurance Company, but the
defendant, the Concordia Loan & Trust Company, objected to
the renewal of said insurance in said company, and notified
plaintiff and agreed with plaintiff that it would insure said
property in the defendant, the Commercial Union Assurance
Company, Limited, and notified and agreed with plaintiff that
it would take care of said insurance; that it would insure
the property and call on the plaintiff for the premium, and
that if plaintiff did not or could not pay the said premium
promptly, the amount of the same would, under the provisions
of said mortgage and the extension thereof, be added to said
mortgage and become a loan against said property; that
plaintiff thereupon accepted said proffer and agreement of
said defendant, the Concordia Loan & Trust Company, to so
insure said property, and abandoned her attempt to renew in
said Orient Insurance Company, and relied upon said
defendant, the Concordia Loan & Trust Company to so insure
the said property in the defendant, the Commercial Union
Assurance Company, Limited; that soon thereafter this
plaintiff received a notice from the defendant, the Concordia
Loan & Trust Company, and also from the defendant, the
Commercial Union Assurance Company, by and through its agents
Crutcher & Welsh, that said property has been insured and
calling on the plaintiff to pay the premium,
to-wit: $ 14.40; that soon thereafter the plaintiff paid said
premium as she was requested to do by the defendant the
Concordia Loan and Trust Company and the said Concordia Loan
and Trust Company and to its agent H. B. Sawyer by its
authority and direction; that said payment of said premium
was made on the 19th day of January, 1895, and that no
notification was ever served upon this plaintiff that said
property had not been insured by either of the defendants, in
any way whatever, until after the property had been destroyed
by fire without the fault, negligence or procurement of this
plaintiff, which fire occurred upon the 24th day of April,
1895, and which fire completely destroyed and burned up the
said buildings which were at said time of the value of $
1,500; that immediately after said fire this plaintiff
notified the resident agent of the Concordia Loan & Trust
Company of the fire and he thereupon at once promised to look
after it and took it upon himself, as agent of the said
Concordia Loan & Trust Company, the matter of looking after
and adjusting said loss, and the plaintiff also notified Burr & Beeson, agents of the defendant the Commercial Union
Assurance Company, at Lincoln, Nebraska, of the said fire,
and they immediately went about the adjustment of the same,
having estimates of the loss made and looking after the...
