Holbrook v. Mill Owners' Mut. Ins. Co.

• Decision Date: 12 October 1892
• Parties: HOLBROOK ET AL. v. MILL OWNERS' MUT. INS. CO.
• Court: Iowa Supreme Court

86 Iowa 255

53 N.W. 229

HOLBROOK ET AL.

v.MILL OWNERS' MUT. INS. CO.

Supreme Court of Iowa.

Oct. 12, 1892.

Appeal from district court, Monona county; GEORGE W. WAKEFIELD, Judge.

Action upon a policy of insurance upon a steam flouring mill, with its machinery and contents, situated at Onawa, in Monona county. There was a trial by jury, and a verdict and judgment for the plaintiffs. Defendant appeals.Geo. F. Henry, for appellant.

J. S. Monk and McMillan & Kendall, for appellees.

ROTHROCK, J.

1. The policy in suit was issued by the defendant to the plaintiffs on the 9th day of October, 1889, and by its terms the insurance was to be in force so long as the insured should remain members of said company. At the time the insurance was effected the plaintiffs executed and delivered their promissory note to the defendant for the sum of $400, to be paid in such portions and at such times as might thereafter be ordered in accordance with the provisions of the articles of incorporation. There was a stipulation in the note in these words: That it “was given as a basis for assessment, as provided in the articles of incorporation of said company, and no single assessment shall exceed the amount named in this note.” The mill and machinery and contents were totally destroyed by fire on the 9th day of March, 1890. There is no dispute as to the fact that the property was insured by a valid policy, and it is conceded that it was destroyed by fire at the time above stated, and the only real ground of defense is that the plaintiffs failed to comply with the requirements of the contract by the payment of an assessment upon said note within the proper time, and that the policy was for that reason suspended at the time the property was destroyed. The said defense is set up in the answer in the following language: “That on the 4th day of February, 1890, the amount of the loss upon the mill of one H. Wessel, of Luzerne, Benton county, Iowa, who held a policy of insurance in defendant company for $5,000, was determined to be the sum of $6,700; that thereupon the secretary of defendant company caused to be mailed to the plaintiffs, under the firm name of Holbrook Bros., a notice of the amount of such loss, with the name of the loser and the amount of said Holbrook Bros.' proportion of the assessment for the payment of such loss, together with an assessment for incidental or current expenses. A copy of such notice is hereto attached, marked ‘Exhibit A,’ and made a part hereof. That such notice was mailed at the post office in the city of Des Moines, Iowa, by registered letter, addressed to said firm of Holbrook Bros., Onawa, Iowa, on the 6th day of February, 1890. That such assessmentwas not paid to the secretary at his office within thirty days from the time such notice was mailed, as is required by article 14 of the articles of incorporation of the defendant company, and, as is therein provided, said policy was suspended after the expiration of the thirty days, and was suspended at the time of the burning of plaintiff's mill, as stated in their petition, such assessment being unpaid at such time.” Article 14 of the articles of incorporation is as follows: “When any assessment is made upon the members of this company, as provided in these articles, it shall be considered due notice thereof when the secretary shall mail by registered letter to each member such notice as is herein provided for; and, if any member shall fail to pay said assessment to the secretary, at his office, within thirty days from the time such notice is mailed, any policy given by this company to him shall be suspended, and ten days thereafter the penalty shall be added to his assessment, as provided in article nine, and the secretary shall proceed to collect as therein provided.” The defendant contends that the notice of the assessment was mailed by “registered letter” on the 6th day of February, 1890, and the plaintiffs contend that the registry and mailing of the letter was not completed until the 7th day of that month. We think it fairly appears from the...