Day v. National Fire Insurance Company, a Corp.

• Citation: 264 S.W. 467,216 Mo.App. 279
• Parties: GAIL DAY, Plaintiff in Error, v. NATIONAL FIRE INSURANCE COMPANY, a Corporation, Defendant in Error
• Decision Date: 02 July 1924
• Court: Missouri Court of Appeals

264 S.W. 467

216 Mo.App. 279

GAIL DAY, Plaintiff in Error, v. NATIONAL FIRE INSURANCE COMPANY, a Corporation, Defendant in Error

Court of Appeals of Missouri, Springfield

July 2, 1924

Error to the Circuit Court of Pemiscot County.--Hon. Henry C Riley, Judge.

AFFIRMED.

Judgment affirmed.

S. V Medling and Mayes & Gossom for plaintiff in error.

(1) An invalid mortgage is not an incumbrance. May on Insurance (2 Ed.), sec. 292. (2) Where a party signs a mortgage, not intending to sign same, and the other party knows that he does not intend to sign same, such mortgage is void. 9 Cyc 390. (3) Where nothing of value or benefit is received for a mortgage, it is void. Smith v. Richardson, 77 Mo.App. 431; Hume v. Eagon, 83 Mo.App. 576; Allen v. Richter, 286 Mo. 691; Jones on Mortgages, sec. 459. (4) Parol evidence is admissible to contradict the consideration clause in a mortgage. Baile v. Insurance Co., 73 Mo. 371. (5) A failure of consideration may be shown, though not pleaded. Sec. 1404, R. S. 1919.

Ward, Reeves & Oliver for defendant in error.

(1) This appeal should be dismissed for the reason that plaintiff has not complied with sec. 1502, R. S. 1919, by causing notice, thereof in writing to be served on the adverse party, or his attorney of record twenty days before the return day of such writ. Garth v. Motter, 248 Mo. 477. (2) A misrepresentation that the automobile insured was a 1919 model, when in fact it was a 1917 model, was material to the risk and would void the policy as a matter of law, even though the representations were innocently made, if they were relied upon by the insurer, and formed a basis for the insurance. Kenney v. Fire Ins. Co., 247 S.W. 249; Hughes v. Fire Ins. Co., 257 S.W. 500; Bushong v. Ins. Co., 253 S.W. 175; Buck v. Ins. Co., 29 Mo.App. 302, and cases cited; Smith v. Insurance Co., 188 Mo.App. 207. (3) The demurrer to the evidence offered by the defendant should have been sustained for the reason that there was such a breach of warranty as materially affected the risk. As a matter of law, such a warranty voids a policy. Ramer v. Ins. Co., 70 Mo.App. 44; Hollenback v. Ins. Co., 133 Mo.App. 57. (4) Plaintiff having charged fraud in the execution of the chattel mortgage, upon him rests the burden of proving it. Wall v. Bedie, 161 Mo. 625; Mansur Implement Co. v. Ritchie, 143 Mo. 587; State ex rel. v. Hope, 102 Mo. 428; Hayden v. Grocer Co., 88 Mo.App. 241.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.--

From a judgment rendered in the circuit court in defendant's favor, the plaintiff in error brings this case here on writ of error. As we view this case the plaintiff is precluded from recovering as a matter of law. Briefly stated, the facts are these:

The plaintiff entered into negotiations with Mr. J. L. Daniels, agent for the Weber Implement Co., for the purchase of a second-hand Dodge automobile and practically agreed to give Daniels some notes which he, the plaintiff, owned as part payment for the car. Before closing the deal he concluded that he would prefer a Reo car, which was in the same garage and owned by a man by the name of Duncan. He then went to see Duncan and made a deal whereby Duncan took the Dodge car and the plaintiff the Reo roadster. He then went to the garage and got the car and drove it for an hour or so to try it out before closing the deal for it, and when he returned to the garage he told Daniels he would take the Reo and Daniels told him to come in and sign up. The plaintiff says he was in a hurry and signed up some papers without reading them or knowing what they were. There is no charge in the case that Daniels misled, deceived or in any way tricked the plaintiff into signing the papers which were executed; and plaintiff gives as his reason for not reading what he was signing that he was "in a hurry." He then drove to the place of business of defendant's agent, took out a policy of insurance on the car which policy contained a provision making it null and void if the car was subject to any lien or mortgage. The automobile was afterwards burned and demand made for the insurance. It developed from the testimony that the paper which the plaintiff signed in a hurry, and which he did not read, turned out to be a chattel mortgage covering the car which was insured securing the payment of the notes which the plaintiff was turning over to Daniels, which mortgage was filed with the recorder of deeds.

The plaintiff attempts to evade the provision in the mortgage by claiming that he did not know he was signing a chattel mortgage and did not know there was a mortgage covering this car, and therefore the mortgage was void and not such as would be avoided by the provision in the policy. This is not a good defense. This court and other courts have repeatedly held that one who signs a contract is presumed to know and understand its terms and a mere failure to read or inform himself of such...