Home Fire Insurance Co., of Omaha v. Bredehoft
| Decision Date | 16 September 1896 |
| Docket Number | 6727 |
| Citation | 68 N.W. 400,49 Neb. 152 |
| Parties | HOME FIRE INSURANCE COMPANY OF OMAHA v. JOACHIM BREDEHOFT |
| Court | Nebraska Supreme Court |
ERROR from the district court of Otoe county. Tried below before CHAPMAN, J.
REVERSED AND REMANDED.
Jacob Fawcett and Greene & Breckenridge, for plaintiff in error.
E. F Warren and John C. Watson, contra.
In the district court of Otoe county Joachim Bredehoft recovered a judgment against the Home Fire Insurance Company of Omaha Nebraska, on an ordinary fire insurance policy, to reverse which judgment the insurance company prosecutes to this court a petition in error.
Of the arguments made by plaintiff in error for a reversal of this judgment we notice only one, namely, the sufficiency of the evidence to sustain the verdict of the jury. To the action of Bredehoft the insurance company interposed three defenses: (1) That Bredehoft had represented and warranted to the insurance company at the time he obtained the policy in suit that he was the owner in fee-simple of the real estate on which the insured building stood and the owner of the household and kitchen furniture; that these representations were false; that at the time of making them the title to said real estate was held by Bredehoft's wife, as was also the title to the household goods; (2) that at the time Bredehoft made application for and received the insurance policy made the subject of this suit all the property covered by the policy in suit was already insured in the name of Bredehoft's wife by the Continental Insurance Company; (3) that the insurance company and Bredehoft, before the bringing of this suit, had settled and compromised the differences existing between them by the insurance company paying Bredehoft the sum of $ 200, the full amount of his insurance on household goods, in full settlement of all his claims against the insurance company under the policy in suit; that he had accepted and retained said sum in compromise and settlement of his claims against the insurance company under the policy sued on. To the third defense Bredehoft replied that the $ 200 received by him were for his loss on the insured personal property, and that if the insurance company had receipts or releases exonerating it from liability to pay the loss sustained upon the dwelling house, such receipts and releases were procured by fraud and fraudulent concealment on the part of the insurance company and received by him, Bredehoft, in ignorance of the terms of such release. We pass no opinion whatever upon the merits of the first two of said defenses interposed by the insurance company to this action, nor upon the sufficiency of the evidence to sustain the finding made by the jury so far as those two defenses are concerned.
Our inquiry is limited to the questions whether the evidence sustains the finding of the jury (1) that no compromise and settlement were made as pleaded by the insurance company between it and Bredehoft; (2) and whether such compromise and settlement, if made, were obtained by mistake fraud, or deceit practiced by the insurance company or someone representing it. The evidence in the record is uncontradicted that the insurance company paid to Bredehoft $ 200, and that he signed and delivered to it a receipt reciting that he had received said sum of money in full of all his claims against the insurance company under the policy in suit, and that he has hitherto retained said sum of money and never at any time offered to return it, or any part of it, to the insurance company. The money was paid to Bredehoft by means of a draft drawn to his order. Attached to the draft was a receipt which recited that the draft, when paid, "will be in full satisfaction of all claims and demands upon said company for loss and damage by fire * * * to property, consisting of household goods and frame dwelling." Bredehoft indorsed...
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