OPINION
SMITH,
J.
--This
is an appeal from a judgment rendered in favor of the
defendant at the January term, 1934, of Circuit Court of
Jasper County.
The
case was tried upon an amended petition consisting of two
counts. The first count was to recover the sum of two
thousand two hundred fifty ($ 2250) dollars for the alleged
failure of the defendant to repair the dwelling house owned
by the plaintiff, and which had been damaged by fire on the
9th day of November, 1931. The second count was
an attempt to recover two hundred fifty ($ 250) dollars
damages caused by the inability of the plaintiff to rent said
house after the damage caused by the fire.
We do not set out the pleadings here, but the
policy of insurance was attached to the pleadings and was
offered in evidence. We shall set out such parts of the
pleadings and the policy as we deem necessary in the opinion.
Trial
was had before the court without a jury, and judgment on both
counts was had for the defendant. The plaintiff was cast on
his motion for new trial, and the case is before us.
The
plaintiff in his statement of facts says, "For the
purpose of any statement of facts in this case, appellant
adopts the statement of facts as embodied in the agreed
statement of facts submitted in evidence and read into the
record, by agreement of the parties at the trial of this
cause."
This
agreed statement of facts is as follows:
"A
STIPULATION OF PARTIES ON AGREED FACTS
"MR.
ARNOLD: For the purpose of expediting the trial of this
cause, the parties hereto stipulate and agree that the
evidence in said cause will show the following facts
concerning which there is no dispute: (First) That the
plaintiff was at all times hereinafter mentioned the owner of
Lot No. 11 in Murphy's Addition to Joplin, Jasper County,
Missouri, on which was located a dwelling house known as No.
2109 Connor Avenue; that the defendant is a corporation
organized and existing under the laws of Wisconsin, engaged
in business in Joplin, Missouri, as an insurance company,
engaged in writing fire insurance policies; that on the 19th
day of March, 1931, the defendant issued and delivered to the
plaintiff its policy of insurance, which it is agreed will be
admitted in evidence for a premium of $ 34.25 paid by the
plaintiff, in which policy it was agreed that the defendant
insured the dwelling house above mentioned for the sum of $
2,500 against loss by fire from noon March 19, 1931, to noon
March 19, 1934, and would pay the same in sixty days after
notice and proof of loss according to the terms of said
policy. That on the 9th day of November, 1931, and while said
policy of insurance was in force, the said house was
partially destroyed by fire; that the plaintiff thereafter,
and in due time, gave notice and proof of said loss to the
defendant company and its agent at Joplin, Missouri.
"It
is further agreed that the plaintiff and defendant were
unable to agree among themselves as to the extent of the
damages to said property, and that thereupon, in accordance
with the terms and provisions of said policy, the plaintiff,
and defendant acting through its agent, entered into a
written agreement for appraisal of said damages, which
written agreement is to be offered in evidence, and agreed
upon the selection of two appraisers to inspect said property
and determine the loss or damage to same and the cost of
making repairs to said damaged building. That plaintiff
selected John S. Phillips as his appraiser and the defendant
selected Trueman E. Martinie; that the two
appraisers thereupon selected E. F. Speck as umpire; that the
three thereupon qualified, examined said property and
determined the sound value thereof together with the expense
of repairs and loss or damage sustained, and made their
written report, which is to be offered in evidence. That on
the 15th day of December, 1931, the defendant, through its
resident agent at Joplin, Missouri, mailed to plaintiff, by
registered mail, at his address in Joplin, Missouri, its
draft No. 21554 in the sum of $ 1,106.05, made payable to
plaintiff and O. H. Gentry, trustee, and Louaddio Ping
Feroglia, mortgagee, which letter was forwarded to plaintiff,
who was then at Skiatook, Oklahoma, and was at a later date
received by plaintiff and by him brought to Joplin and turned
over to his attorney, John J. Wolfe; and that on the 8th day
of January, 1932, or thereafter, plaintiff's said
attorney, under instructions of the plaintiff, returned said
draft or check so made out by defendant insurance company and
tendered to the plaintiff and returned said draft to the
defendant, together with the letter thereto attached of the
same date, which will be introduced in evidence.
It is
further agreed that on the date the policy of insurance in
question was issued by the defendant to the plaintiff the
property described in said policy of insurance was incumbered
by a deed of trust given by one J. R. McPeak, a former owner,
to J. H. Spencer, Trustee for Overton H. Gentry, and dated
October 18, 1911, and recorded in the office of the Recorder
of Deeds of Jasper County, Missouri, on October 24, 1911, in
Book 133 at page 82, and that said deed of trust was given to
secure the payment of a note of said J. R. McPeak in the sum
of $ 1,600, due and payable on the 18th day of October, 1915;
that upon the date of the fire above mentioned said mortgage
was valid and a subsisting lien upon said property; that said
indebtedness amounted to $ 1,600 with some interest; that
said note had been by the named payee therein transferred and
endorsed and assigned
to various parties; and upon the date of said fire Louaddio
Ping Feroglia, formerly Louaddio Ping, was the owner and
holder of said note and deed of trust. That said policy of
insurance at the time of its issuance contained and there was
attached thereto a standard mortgage loss clause, as will
more fully appear from the policy of insurance to be
introduced in evidence; that said standard mortgage loss
clause had been upon said policy at all times and that
Louaddie Ping Feroglia was the assignee of O. H. Gentry, the
named payee in said note. That after the receipt of the
letter of January 8, 1932, Louaddie Ping Feroglia instituted
a suit in the Circuit Court of Jasper County, Missouri, to
recover the amount of insurance evidenced by the amount of
her note or deed, to-wit, the sum of $ 1,600; that the said
suit was heard at the April term, 1932, in Division No. 1 of
the Circuit Court of Jasper County, Missouri, and a judgment
entered in favor of Louaddio Ping Feroglia
against this defendant in the sum of $ 1,106.05, and that
said judgment was subsequently paid and satisfied by this
defendant. And it is agreed that the entire record and
pleadings in the case of Louaddio Ping Feroglia v. The
Northwestern National Insurance Company of Milwaukee,
Wisconsin, shall be considered introduced in evidence in this
case.
"MR
WOLFE: For the purpose of any competent evidence appearing
from the files and record in said case, if any, competent and
admissible as a defense in this case, and subject to any
objection on the part of the plaintiff as to the competency
of the same in this case.
"BY
THE COURT: If you are limiting the introduction and
observation of the files in that case, I think you had better
offer such as you wish and make your objection to them so as
to keep your record straight.
"MERCER
ARNOLD: Mr. Wolfe's objections is to the entire
proceeding.
"BY
THE COURT: If you admit that they may be accepted as a part
of the evidence in this case, and then limit your objections,
your record will be silent as to which particular part you
limit it, unless the offer is made and objection made and
ruling of court made.
"BY
MR. ARNOLD: We are offering the entire record and pleadings
and Mr. Wolfe is objecting to the entire record and
pleadings.
"MR.
WOLFE: When it is offered in evidence, then we will reserve
the right to make our objections to the competency of such
parts of it.
"MR.
ARNOLD: You object, as I understand it, to the whole
proceeding?
"MR.
WOLFE: Yes.
"MR.
ARNOLD: On the theory that it constitutes no defense in the
case.
"MR.
WOLFE: Yes.
"THE
COURT: Let the record now show that they offer as a part of
this record those files, and let Mr. Wolfe make his
objections, and then I can tell the limit and scope of your
offer and objections,
"MR.
WOLFE: Yes, and it is further agreed that the evidence in
this case will show that the defendant insurance company,
after notice and demand on the part of the plaintiff that the
defendant repair the damages to the said insured building,
that the defendant has not made any repairs whatsoever to the
said insured building to this date.
"MR
ARNOLD: It is further agreed that each of the parties to this
suit paid his own appraiser and paid one-half of the expense
of the umpire in making said appraisement, according to the
stipulation, and that the amount paid was $ 31. It is agreed
that the defendant through its local agent at Joplin,
Missouri, upon December 2, 1931, mailed to
Mr. A. J. Gordon, 2109 Connor Avenue, Joplin, Missouri, a
letter, a carbon copy of which may be offered in evidence,
and in which letter the defendant, through its agent at
Joplin, Missouri, advised the plaintiff that it was prepared
to pay to the plaintiff, O. H. Gentry and Louaddio Ping...