Frane v. Burlington Ins. Co.
| Decision Date | 25 January 1893 |
| Citation | 54 N.W. 237,87 Iowa 288 |
| Parties | JACOB FRANE, Appellee, v. BURLINGTON INSURANCE COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Ringgold District Court.--HON. JOHN W. HARVEY, Judge.
ACTION on a policy of fire insurance. There was a trial by jury, and a verdict and judgment in favor of plaintiff. The defendant appeals.
Affirmed.
Newman & Blake, for appellant.
Laughlin & Campbell and R. H. Spence, for appellee.
In May 1889, the defendant issued to Enoch Atwood a policy insuring him for the term of five years against loss by fire, on his dwelling house, to the amount of three hundred and fifty dollars. Other property was also covered by the policy, but it is not involved in this action. In March 1890, Atwood sold the dwelling house, and the land on which it stood, to the plaintiff, and assigned to him so much of the policy as included the house, and the assignment was approved by the defendant. The house was destroyed by fire during the next month, notice thereof was given, and proof of loss was made, as required by law. The insurance was based upon an application, which was made a part of the policy, and the representations therein contained were made warranties on the part of the assured. The policy further provided that, if the property should be incumbered by mortgage, then, unless the consent of the president or secretary thereto should be indorsed on the policy, it should be void. It also provided that no officer, agent, or representative of the company, nor any other person excepting the president or secretary, in writing indorsed on the policy, should have any power to waive any of the conditions thereof, or any of the legal rights of the company, and that no officer, agent, or representative of the company was empowered to make any verbal agreement about the policy, either before or after a loss.
In accepting an assignment of the policy, the plaintiff signed an indorsement thereon to the effect that the statements contained in the application were true, and warranted by him to be true, and that there had not been any violation of the conditions or stipulations of the policy. The approval was made subject to the conditions of that indorsement. The application showed that the land on which the house stood was incumbered by a mortgage to the amount of seven hundred and fifty dollars. When the plaintiff purchased the premises, he assumed the payment of that mortgage, and gave to Atwood a second one for the sum of nine hundred and fifty dollars. Both the mortgages were in force when the house was destroyed. The defendant insists that it had never consented to the second mortgage, and had no knowledge of it when the assignment was approved, and that in consequence the policy is void. The plaintiff contends that full knowledge of the mortgage was communicated to one Armstrong, an agent of the defendant, who received the policy after the assignment was made, and sent it to the defendant for approval, and that the defendant was chargeable with his knowledge at the time the assignment was approved. Whether he knew of the second mortgage when he received the policy to forward to defendant and whether his agency in the transaction was of such a character that his knowledge of the facts was...
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