Fox v. Capital Ins. Co. of Des Moines

• Decision Date: 17 December 1894
• Citation: 93 Iowa 7,61 N.W. 211
• Parties: FOX v. CAPITAL INS. CO. OF DES MOINES.
• Court: Iowa Supreme Court

93 Iowa 7

61 N.W. 211

FOX

v.CAPITAL INS. CO. OF DES MOINES.

Supreme Court of Iowa.

Dec. 17, 1894.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Action on a policy of fire insurance. Judgment for defendant, and the plaintiff appealed. Reversed.Gatch, Connor & Weaver, for appellant.

Read & Read, for appellee.

GRANGER, C. J.

This is a law action, and it was tried in the district court without a jury, and the trial judge filed a carefully prepared opinion, in which the facts are found and considered in the light of the law applicable thereto; and, as there is no question as to the correctness of the facts as found, we quote the part of the opinion showing the facts and some of the conclusions of the court upon legal questions involved:

“Action was brought on a policy of insurance, by the terms of which the defendant company agreed to insure the plaintiff ‘against loss or damage by fire, not exceeding the sum of $750, on the following specified and located property, namely, $750 on stock consisting principally of saws, saw-sharpening machinery, and saw teeth, received and held by him on consignment, all while contained in the two-story, corrugated iron building situated on the south side of Yesler avenue, west of Railroad avenue, Seattle, W. T.’ The only other clause of the policy material to the issue made is the following: ‘And the Capital Insurance Company hereby agrees to make good unto the assured, his executors, administrators, or assigns, all such immediate loss or damage, not exceeding the sum insured, nor the interest of the assured, as may occur by fire to the property above specified.’ The defense relied upon was that under the facts shown in evidence, and the clause in the policy last recited, the plaintiff is not entitled to recover. The cause was tried to the court, resulting in a finding for the defendant. Counsel for plaintiff felt that upon the question decided by the court he had not given that investigation and thought that in view of the holding of the court it deserved, and he was granted time to prepare and argue a motion for a new trial. The cause has now been carefully and fully submitted by counsel for both parties. The court has given the question involved all the attention circumstances will permit. In view of the very full discussion of all the questions, upon this submission, I will treat the cause as having been originally submitted upon this hearing. It is not denied that the property covered by the policy was destroyed, and for my present purposes I will assume that due proofs of loss were made, and that all acts have been done by the plaintiff requisite to fix the liability of the defendant company.

1. What interest did plaintiff have in the goods destroyed? Plaintiff's deposition was taken, and the following answers will show his claim: ‘The goods were held by me in trust or on consignment, and to be paid for as sold by me.’ ‘My title was that of consignee, on the condition that all goods not sold or used by me were to be returned to consignor at his request.’ ‘My interest, by reason of freight advanced and liability for the goods, until returned, or the price therefor paid.’ ‘Being well known by the parties from whom I received the goods, I ordered the same, and informed them of the terms on which I desired the goods, which was to pay for the same as sold, and, if not sold, to be returned at their option.’ The last answer seems to be the only one in which he has attempted to state the terms of the contract between the consignors and himself. His other answers are largely in the nature of conclusions, drawn by himself, from his course of dealings with the parties. I am disposed to accept this last statement as the more satisfactory, and to conclude that plaintiff had the right to sell the property; and when he sold any portion of the goods he was bound to pay therefor, and the purchaser received a good title to the property purchased; that the consignors had the right to demand the return of the unsold goods at any time, and that it was plaintiff's duty to return them; that plaintiff fixed the prices at which he should sell the goods, of which the consignors had no knowledge, so far as shown, and I infer that plaintiff settled and paid for goods sold on the basis of the consignor's prices therefor. Assuming such to be the contract, in whom was the title and ownership of the property destroyed at the time of the fire? If it was in the plaintiff, he is clearly entitled to recover therefor. I have been unable to find any case exactly parallel to this. The case which seems to me to most clearly correspond with the one under examination, to which my attention has been called, is the one referred to by Mr. Benjamin in his work on Sales (section 598): ‘In a case before the lords justice (Ex parte White, In re Nevill) the facts were that Alfred Nevill was a partner in a firm of Nevill & Co. He also did business on his individual account with Towle & Co., cotton manufacturers. His dealings with Towle & Co. were conducted as follows: They consigned goods to him, accompanied by price list, and he sent to them monthly an account of the goods which he had sold, debiting himself with the price given in the price list, giving no particulars whatever as to his sales; and in the next month he paid according to his accounts thus rendered. He frequently had the goods received from Towle & Co. dyed or bleached before selling them, but he gave no account of this to Towle & Co., and did not charge them with the expense. By an arrangement between Nevill and his partners he paid to the credit of the firm's general account the money received by him from the sale of Towle & Co.'s goods, and when he made payments to Towle & Co. he sent them either bills received from the purchasers of the goods, subject to a discount which Towle & Co. charged against him on their books, or checks, or both; and when checks were sent they were always drawn by the firm of Nevill & Co. Nevill dealt with his own firm as his bankers. He had a private account with them of all moneys paid in and drawn out in matters not relating to the partnership, and this account included many entries not at all connected with the goods of Towle & Co. Nevill & Co. became bankrupt, and there was a balance in favor of Alfred Nevill on their books in the above-mentioned...