Hartford Fire Ins. Co. v. Brown

• Court: United States State Supreme Court of Florida
• Writing for the Court: BUFORD, Justice.
• Citation: 119 Fla. 610,160 So. 657
• Parties: HARTFORD FIRE INS. CO. et al. v. BROWN et al.
• Decision Date: 04 April 1935

160 So. 657

119 Fla. 610

HARTFORD FIRE INS. CO. et al.
v.
BROWN et al.

Florida Supreme Court, Division B.

April 4, 1935

Rehearing Denied April 20, 1935.

Suit by J. W. Brown and the Town of Madison against the Hartford Fire Insurance Company and others. From an order denying motion to dismiss bill of complaint, defendants, except the town of Madison, appeal.

Affirmed. [119 Fla. 611] Appeal from Circuit Court, Madison County; Hal W. Adams, judge.

COUNSEL

Davis & Davis, of Madison, and Watson & Pasto & Brown, of Pensacola, for appellants.

C. A. Avriett, of Jasper, for appellees.

OPINION

BUFORD, Justice.

J. W. Brown exhibited his bill of complaint in the circuit court of Madison county, Fla., against Hartford Fire Insurance Company, a corporation of Hartford, Conn., American Home Fire Assurance Company, a corporation of New York, N. Y., the Home Insurance Company, a corporation of New York, N. Y., and the town of Madison, a municipal corporation.

In the bill of complaint complainant alleged in effect that on the 18th day of December, 1933, he purchased and was put in possession of a certain described lot of land in the town of Madison, Fla.; that the purchase was from the owner, the town of Madison, a municipal corporation; that at the time he purchased the land it was agreed that he should pay $100 cash and $500 on November 15, 1933, and $500 on January 15, 1934; and that the town of Madison undertook to make to the complainant a bond conditioned to deliver the complainant a good title to the land when the complainant had made the payments as agreed upon. But that in the drawing of the proposed bond for title the scrivener by mistake drew the bond so that J. W. Brown of the county of Hamilton became, held, and firmly bound unto the town of Madison of the county of Madison, state of Florida, in the sum of $1,100 for the payment whereof well and truly to be made he bound himself, [119 Fla. 612] his heirs, executors, and administrators; that the words 'J. W. Brown of the County of Hamilton and State of Florida' should have been placed in lieu of the words 'Town of Madison of County of Madison, State of Florida'; and that the latter words should have been placed in the instrument in lieu of the former words. The instrument was attached to the bill of complaint and made a part thereof and its context shows conclusively that this was the intention of the parties.

It is further alleged that Brown executed two notes payable to the town of Madison for the deferred payments of $500 each, one due and payable on November 15, 1933, and the other due and payable on January 15, 1934. It is alleged that at the time of the purchase the town of Madison had and held a contract of fire insurance upon a dwelling house upon the land issued by the American Home Fire Assurance Company in the sum of $1,000; that town of Madison and the plaintiff caused the American Home Fire Assurance Company to change the policy so that loss was payable, instead of to the town of Madison, to the town of Madison and plaintiff jointly for the sole, only, and no other purpose than security for the two notes due by the plaintiff to the town of Madison before mentioned. And that the premium was duly paid on the said policy; that the policy remained in the custody and control of the town of Madison. [160 So. 658]

It is alleged that on October 3, 1933, Home Insurance Company for and in consideration of the premium paid did make, issue, and deliver to the complainant and the town of Madison its policy of insurance numbered 186 in the sum of $2,000, insuring against loss from fire the same dwelling house for a period of one year, and that this policy was payable to the town of Madison and the complainant jointly for the purpose, as security, for the payment [119 Fla. 613] of the notes above mentioned; that on the same day Hartford Fire Insurance Company for a like consideration and for the same purpose issued a policy to the complainant and the defendant town of Madison in the sum of $2,000 insuring the same house against loss by fire for a period of one year; that the premium was duly paid; and that this policy was also intended between the parties to be further security for the payment of the two notes aforesaid.

It is further alleged that the three defendant insurance companies had full knowledge of the contract of purchase, and its terms, and that the complainant owed the town of Madison $1,000 evidenced by the two notes, and that these policies were made payable in the manner above set forth for the purpose of being security for the sum of $1,000 due by complainany to the town of Madison, and that the town of Madison was bound upon the payment of $1,000 to it by complainant to make and convey by good deed fee-simple title to the plaintiff the described premises; that the three insurance companies were advised of and knew the fact to be that the interest of the town of Madison in the said property was in the sum of $1,000; and that the town of Madison held the legal title to the said property while the equitable title was in the complainant, subject to the indebtedness of $1,000 only.

It is then alleged that thereafter, to wit, on October 4, 1933, the dwelling house so insured in said policies was burned and destroyed by fire and loss was thereby occasioned to the complainant in the sum of $2,000 on one of the policies as above mentioned, $2,000 on another of the policies as above mentioned, and $1,000 on the other policy above mentioned, and that the dwelling house burned under such circumstances and conditions as to render the insurance company liable for the full amount of the said [119 Fla. 614] policies to the complainant and the town of Madison; that the said insurance companies were each liable on its respective policy to the extent of the face amount thereof to the complainant and the town of Madison, but that the aggregate amount of the interest of the town of Madison in and to said policy amounted to only $1,000, which was equivalent to the interest of the town of Madison in the property.

It is averred that proof of loss was made and that complainant did all things and that all things have happened and all time has expired which entitle complainant and the town of Madison to receive payment from the respective insurance companies, each for the respective amount of the policy issued by the said company, but each company failed and refused to pay the amount of the policy.

It is then alleged as follows:

'Plaintiff alleges that on towit January 22, 1934, and after full time had elapsed for the payment to plaintiff and Town of Madison of the said sums of money hereinbefore set out by the three defendant Insurance Companies, that the three aforementioned defendant Insurance Companies jointly conspiring began a scheme of connivance and negotiations with the defendant Town of Madison to induce said Town of Madison to breach its contract with plaintiff entered into on Sept. 18th, 1933, which said contract marked Exhibit 'A' is attached to this bill, which said negotiations were in writing by the attorneys for the said three defendant Insurance Companies, a copy of said negotiations is attached hereto marked Exhibit 'E' Thereafter on the 26th day of January, 1934, the Town of Madison by its City Council in Special Session did by motion and adoption accept from the defendant Insurance Companies the following proposition by said Insurance Companies [119 Fla. 615] towit 'The said Insurance Companies will jointly pay to the Town of Madison the sum of $1000.00 upon consideration that said Town deed to said Companies or to any one they may designate the property described in that certain bond now held by J. W. Brown and executed by the Town of Madison on Sept. 18th, 1933 subject to the rights of said

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