Fenton v. Cascade Mut. Fire Ass'n of Washington
| Decision Date | 27 October 1910 |
| Citation | 111 P. 343,60 Wash. 389 |
| Court | Washington Supreme Court |
| Parties | FENTON et ux. v. CASCADE MUT. FIRE ASS'N OF WASHINGTON. |
Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.
Action by Arthur E. Fenton and wife against the Cascade Mutual Fire Association of Washington. Judgment for plaintiffs, and defendant appeals. Affirmed.
Govnor Teats, Hugo Metzler, and Leo Teats, for appellant.
C. E Stevens and H. T. Granger, for respondents.
The following brief statement we think will be sufficient for the determination of the questions involved, without mentioning some details set forth in the statement of counsel. The respondents owned a house in the city of Tacoma, and mortgaged the same, with the land on which it was built, to one Bertha L. Leigh, for the sum of $750. The respondents had the property insured by appellant on July 17, 1908, for the sum of $750. The business was done through C. L. Johnson, an agent of Bertha L. Leigh. Johnson informed the appellant company of the fact that Mrs. Leigh had a mortgage on the property in the sum of $750, and the company attached a rider containing a mortgage clause in the following words 'Loss or damage, if any, under this certificate shall be payable to Bertha L. Leigh of the city of Tacoma, state of Washington, mortgagee (or trustee) as interest may appear.' On November 25, 1908, Fenton borrowed an additional 250 from Mrs. Leigh, and gave another and second mortgage to cover such sum. On May 2, 1909, the property in question was completely and totally destroyed by fire, and plaintiffs thereupon for the first time were notified by the insurance company that the premium had not been paid. The plaintiffs then tendered the amount due, which was refused, and suit was brought for the amount due on the policy. Trial was had, which resulted in favor of plaintiffs. Findings of fact were made and conclusions of law followed and judgment was entered for the plaintiffs in the sum of $750, less the amount of the premium which had been tendered.
There are some exceptions taken to the findings of fact, but an examination of the record satisfies us that they are borne out by the testimony. There are two propositions relied upon by the appellant in this case: (1) Nonpayment of the premium prior to the loss; and (2) that the giving of the second mortgage avoided the policy. In relation to the first proposition, the testimony shows that it was simply a misunderstanding that prevented the payment of the premium; that the respondents thought the premium was paid until the loss occurred, and had not been notified to the contrary by the appellant; and that no demand had ever been made upon him for the payment of the premium. The policy had been issued and delivered in accordance with the application. Under all authority, it then became an executed contract, and under such circumstances the presumption attaches that credit is given and time for payment extended. 19 Cyc. 606, and cases cited.
As to the second proposition, stripped of any modification in the contract, the giving of the...
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...of insurance is issued, but "such interest as by proper proofs is shown to appear at the time of the loss." Fenton v. Cascade Mutual Fire Ass'n, 1910, 60 Wash. 389, 111 P. 343, 344. And see Atlas Reduction Co. v. New Zealand Ins. Co., 1905, 8 Cir., 138 F. 497, 9 L.R.A., N.S., Even in the ca......
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