Home Ins. Co. v. Woods

• Decision Date: 01 July 1925
• Docket Number: No. 3726.,3726.
• Citation: 274 S.W. 520
• Parties: HOME INS. CO. v. WOODS et al.
• Court: Missouri Court of Appeals

274 S.W. 520

HOME INS. CO. v. WOODS et al.

No. 3726.

Springfield Court of Appeals. Missouri.

July 1, 1925.

Appeal from Circuit Court, Texas County; W. E. Barton, Judge.

Action by the Home Insurance Company against N. W. Woods and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

J. L. Bess, of West Plains, and W. N. Evans, of Houston, for appellant.

BRADLEY, J.

This is a suit on an installment note given for fire and tornado insurance premiums. Trial was had before the court and a jury. Verdict and judgment went for defendants, and plaintiff appealed.

The petition is in conventional form. The answer admits the execution of the note, but pleads failure of consideration. This defense is based upon the contention that the policy was never delivered. The answer also contains a counterclaim, whereby defendants seek to recover $15.12, the amount paid when the application was taken. Plaintiff in a reply denied generally the new matter.

The note was for $60.48, dated February 1, 1922. The four installments for $15.12 each were due and payable April 1, 1923, 1924, 1925, and 1026. Plaintiff's evidence was to the effect that the application for the two policies for which the note was given was received and approved, and that the policies were issued and mailed to defendants, who are husband and wife. Defendant N. W. Woods sought, through the bank at Mountain View, a federal farm loan. He kept his "valuable papers" in the bank. June 19, 1922, the cashier of the bank wrote plaintiff as follows:

"Mountain View, Missouri, June 19, 1922. "The Home Insurance Co., Western Farm Department, Chicago, Illinois—Gentlemen: We are inclosing you herewith policies F. I. 508211 & B. 477985, N. W. and M. D. Woods. Mr. Woods did not secure his federal loan, and you may therefore cancel the St. Louis Federal Land Bank mortgage clause and return the policies to us for Mr. Woods.

                            "Yours very truly
                                        "M. L. Landrum, Cashier."
                

Again, on August 9, 1922, the cashier wrote plaintiff as follows:

"Mountain View, Mo., Aug. 9, 1922. "Lesch & Cornell, Managers, Western Farm Department, Home Insurance Company, Chicago, Illinois—Gentlemen: We are returning you herewith policies, F. I. 508211 & B. 477985, N. W. and M. D. Woods, which you returned to us June 27th. The Federal Land Bank attorney did not approve this on account of it being based on tax sale. Mr. Woods has made new loan of $800 in favor of Ben R. Westcott, Monteer, Mo., which we think is for one year. Kindly...