Ginsburg v. Bull Dog Auto Fire Ins. Ass'n of Chicago

• Citation: 160 N.E. 145,328 Ill. 571
• Decision Date: 24 February 1928
• Docket Number: No. 17004.,17004.
• Parties: GINSBURG v. BULL DOG AUTO FIRE INS. ASS'N OF CHICAGO.
• Court: Illinois Supreme Court

328 Ill. 571

160 N.E. 145

GINSBURG

v.BULL DOG AUTO FIRE INS. ASS'N OF CHICAGO.

No. 17004.

Supreme Court of Illinois.

Feb. 24, 1928.

Commissioners' Opinion.

Error to First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; David M. Brothers, Judge.

Suit by Elkin Ginsburg against the Bull Dog Auto Fire Insurance Association of Chicago. Judgment for plaintiff was reversed by the Appellate Court (237 Ill. App. 656), and plaintiff brings certiorari.

Judgment of the Appellate Court reversed, and that of the circuit court affirmed.

Abraham Lepine, of Chicago (George C. Bliss, of Chicago, of counsel), for plaintiff in error.

Louis J. Behan and William J. Corrigan, both of Chicago, and Wayne C. Townley, of Bloomington, for defendant in error.

PARTLOW, C.

Defendant in error, the Bull Dog Auto Fire Insurance Association of Chicago, a mutual and reciprocal insurance company, issued a policy of insurance to Nick D'Alassandro against loss by theft of an automobile. On January 17, 1920, the automobile was stolen and was never recovered. D'Alassandro assigned his claim under the policy to plaintiff in error, Elkin Ginsburg. The policy provided that:

‘No assignment of interest under this policy shall be or become binding upon the association unless the written consent of the attorney is indorsed thereon and an additional membership fee is paid.'

Plaintiff in error began suit in the circuit court of Cook county against defendant in error upon the assignment. The declaration consisted of five counts. The first count alleged the assignment to plaintiff in error of the policy, together with all right, title, and interest therein. The other counts alleged an assignment to plaintiff in error of the money due. A plea of the general issue was filed, together with several special pleas, one of which averred that when the attempted assignment was made the consent of the attorney in fact was not obtained nor was it indorsed on the policy; that a payment of the additional membership fee had never been made; that the policy was void by reason of certain false representations made by the insured at the time the policy was issued; that plaintiff in error had no right, title or interest in the policy. There was a verdict and judgment against defendant in error for $1,195.75. An appeal was prosecuted to the Appellate Court for the First district, where the judgment was reversed, and the case is brought to this court on a writ of certiorari.

The entire defense was based upon the failure to comply with the terms of the policy above quoted with reference to the assignment. There is a distinction between the assignment of a policy of insurance before loss and the assignment of a claim for loss after the loss has occurred. In the case of an executorycontract, whether it be a policy of insurance or any other contract, the rule is well settled that the contract generally is not assignable without the consent of both parties thereto, where the personal acts and qualities of one of the parties form a material and ingredient part of the contract. Chitty on Contracts (11th Am. Ed.) 1336. This is upon the doctrine that every one has a right to select and determine with whom he will contract, and he cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman:

‘You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract.’ Mueller v. Northwestern University, 195 Ill. 236, 63 N. E. 110,88 Am. St. Rep. 194.

In 32 Corpus Juris, 1091, the rule with reference to the assignment of insurance policies is stated, as follows:

‘Being a voluntary contract, the parties may make it on such terms and incorporate such provisions and conditions as they see fit to adopt, and the contract as made measures their rights, provided, of course, the agreement does not violate any principle of the common law or any provision of a constitution or statute.'

On page 1240 of the same volume it is said:

‘But a policy cannot be assigned where the contract is considered a personal contract between the company and the insured, or where the assignment is expressly prohibited by the terms of the policy, unless the company consents to the assignment.'

After the contract has been fully executed and nothing remains to be done except to pay the money, a different rule applies The element of the personal character, credit, and substance of the party with whom the contract is made is no longer material, because the contract has been completed and all that remains to be done is to pay the amount due. The claim becomes a chose in action, which is assignable and enforceable under section 18 of the Practice Act (Smith-Hurd Rev. St. 1927, c. 110). In Sloan v. Williams, 138 Ill. 43, on page 46, 27 N. E. 531, 532 (12 L. R. A. 496), it is said:

‘It is true, that, after the contract...