Firemen's Ins. Co. v. Barnsch

• Decision Date: 12 May 1896
• Citation: 44 N.E. 285,161 Ill. 629
• Parties: FIREMEN'S INS. CO. v. BARNSCH.
• Court: Illinois Supreme Court

161 Ill. 629

44 N.E. 285

FIREMEN'S INS. CO.

v.BARNSCH.

Supreme Court of Illinois.

May 12, 1896.

Appeal from appellate court, First district.

Action by Augusta Barnsch against the Firemen's Insurance Company, brought in the circuit court of Cook county, and tried before Richard W. Clifford, judge, and a jury. Judgment for plaintiff, which was affirmed by the appellate court (59 Ill. App. 78), and defendant appeals. Affirmed.

W. J. Ammen, for appellant.

Arnd, Evans & Arnd, for appellee.

CARTER, J.

This was an action of assumpsit, brought against the Firemen's Insurance Company on a policy of insurance issued by the defendant company to Augusta Barnsch, insuring her against loss or damage by fire for one year for the aggregate amount of $1,600, to wit, $1,500 on her two-story frame building at Whiting, Ind., and $100 on her frame barn, situate in the rear of said premises. The buildings were destroyed by fire November 5, 1895. The suit is brought in the name of Augusta Barnsch, for the use of Charles Saunders, for the use of Henry Schrage. The declaration alleges that the policy was issued to Augusta Barnsch, and that she assigned it to Charles Saunders, and that the company assented to such assignment, and that Saunders assigned the policy to Henry Schrage, the company assenting thereto. The case was tried before the court and a jury, resulting in a verdict and judgment against the company for $1,665; and, this judgment having been affirmed by the appellate court on appeal, the company prosectes its further appeal to this court. No meritorious objection is made, but various technical reasons are assigned as grounds upon which it is claimed the judgment should be reversed.

The policy provided that it should not be valid unless countersigned by the authorized agent of the company at Hegewich, Ill. It did, however, purport on its face to have been so countersigned; but appellant contends that it was error to admit the policy in evidence without proof aliunde that it was countersigned by the agent of the company at Hegewich. We agree with appellee that such proof was unnecessary, because no plea verified by affidavit was filed denying the execution of the policy. In Home Flax Co. v. Beebe, 48 Ill. 138, this court said: ‘The agreement purports to have been made by defendant in error, with the Home Flax Company, by T. Gray, their agent, and the company are sued upon it. If it was not their agreement, they should have attached to their plea an affidavit denying its execution. This was not done, and they must be taken as one of the contracting parties.’ 2 Starr & C. Ann. St. p. 1798, c. 110, § 33; Hunt v. Weir, 29 Ill. 83;Richelien Hotel Co. v. International Military Encampment Co., 140 Ill. 248, 29 N. E. 1044;Dwight v. Newell, 15 Ill. 333. By its terms, it was not an instrument completely executed until countersigned by its agent; and, as it purported to be so countersigned, no further proof, under the issues was necessary. Illinois Mut. Fire...