Hartford Fire Ins. Co. v. Brown
Decision Date | 29 October 1925 |
Docket Number | 11847. |
Citation | 130 S.E. 62,133 S.C. 17 |
Parties | HARTFORD FIRE INS. CO. v. BROWN ET AL. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Aiken County; J. K. Henry Judge.
Action by the Hartford Fire Insurance Company against Lillie A Brown and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Williams Croft & Busbee, of Aiken, for appellants.
T. R Morgan, of Aiken, for respondent.
Sets out two causes of action on promissory notes, alleging aggregate sum of $367.85 and attorney's fees due; that one note was given in payment of first installment on insurance premium, based upon application made same day; and second note being for next four annual installments of premium for insurance, based upon the same application.
Answer.
Denies all allegations of complaint not specifically admitted; admits execution of application for insurance and notes, but sets up as a defense that the delivery to the plaintiff was a conditional delivery, the condition being that the application should be accepted and policy issued; denies liability, and pleads failure of consideration, by reason of the fact that application was never accepted by plaintiff, and no policy issued, or delivered, to defendants so as to make a contract between them, as contemplated in application and notes.
Mr. Morgan: The notes provide for a reasonable attorney's fee, and, while I have not proven any amount as reasonable, I think the court can fix that.
The exceptions are as follows:
(1) "It is respectfully submitted that the presiding judge erred in directing a verdict for the plaintiff; the error being there was a question of fact that should have been submitted to the jury, to wit: Did the plaintiff accept and approve the application and notes of the defendants and issue to them a policy, so as to make a binding contract between them, this fact being disputed by positive testimony, and when the application specifically stipulated that it was subject to the approval of plaintiff, and notes stipulated that they should not be valid unless a policy was issued by plaintiff?"
The second exception was withdrawn.
(3) "It is respectfully submitted that the presiding judge erred in holding from the testimony that a valid contract of insurance was entered into on the day the application was signed, August 23, 1921, and that the issuance of a policy was not necessary to the making of the contract, and holding from the testimony that plaintiff had accepted the application, the error being the notes and application of the defendants offered in evidence by the plaintiff show that the notes shall be void unless a policy is issued by the company, and that the...
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Hartford Fire Ins. Co. v. Garvin
...for the jury, and this exception is sustained." As pointed out in the dissenting opinion of Mr. Justice Cothran in Hartford Fire Insurance Co. v. Brown et al., supra: "Actual delivery [of the policy] was not essential the consummation of the contract, where it is shown that the company acce......