Hubbard v. Home Ins. Co. of New York

• Decision Date: 05 June 1920
• Docket Number: No. 2637.,2637.
• Citation: 205 Mo. App. 316,222 S.W. 886
• Parties: HUBBARD et al. v. HOME INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

222 S.W. 886

205 Mo. App. 316

HUBBARD et al. v. HOME INS. CO. OF NEW YORK.

No. 2637.

Springfield Court of Appeals. Missouri.

June 5, 1920.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Suit by J. M. Hubbard and another, doing business as Hubbard & Perry, against the Home Insurance Company of New York. Judgment for plaintiffs, and defendant appeals. Affirmed.

Fyke, Snider & Hume, of Kansas City, for appellant.

Lamar, Lamar & Lamar, of Houston, for respondents.

BRADLEY, J.

On August 22, 1918, defendant issued its policy for $1,400 insuring plaintiffs against loss or damage by fire on some baled hay consisting of 59 tons, 710 pounds, then in a certain building. The hay burned on September 22d thereafter, and plaintiffs sought to collect under the policy, and payment was declined, and hence this suit. A jury was waived, and the cause tried before the court. Judgment went for plaintiffs for $1,378.40, and defendant brings the cause here by its appeal.

The policy contained a provision that it would be void "if the interest of the insured be other than unconditional and sole ownership of the said property, or if any change take place in the interest, title, "or possession of the subject of the insurance." On this clause defendant relies to defeat recovery. On September 5th plaintiffs contracted to sell 50 tons of this hay to one Lawler; the hay was sold to be delivered by plaintiffs on board cars at Mountain Grove, where it was stored in the building where it burned. The purchaser was to obtain the cars, and was to notify plaintiffs. Cars could not be readily obtained, and no time was fixed as to when the cars would be furnished. At the time of the purchase by Lawler his agent, Wheeler, gave plaintiff Perry a check for $250, and the next day, September 6th, gave plaintiff Hubbard a check for $350, and these checks were ensued. Plaintiff Hubbard seemed to be fearful that the payment of $250 might not be sufficient to impel Lawler to take the hay should the price drop considerably, and for this reason the $350 payment was requested. Cars were not obtained, and the hay burned as stated on September 22d. Plaintiffs sought to prove that Lawler was threatening suit to recover back what he had paid, and that they were compelled to and did pay Lawler back his money, but the court excluded this evidence.

Defendant contends that Lawler had acquired such an interest in the hay as to bring into operation the change of interest clause in the policy, and render it void as clause provided. Plaintiffs contend that there was no separation or setting apart of the hay contracted to be sold, so that it could be identified from other hay in the building, and that there was no delivery which plaintiffs were required to make, and that the sale was for cash, and that full payment of the purchase price was a prerequisite to the passing of title, and that therefore there was no breach of the policy. In addition plaintiffs relied upon an alleged waiver, but we do not deem it necessary to consider the question of waiver.

Defendant relies on Manning v. Insurance Co., 123 Mo. App. 456, 99 S. W. 1095. In that case the policy was issued to one McElroy, who sold the lot and dwelling house insured to Manning, and with the company's consent transferred the policy. Afterwards, on September 19, 1904, Manning entered into a written contract with one Molesworth whereby the latter sold to Manning a farm valued at $4,000 to be paid for by paying $500 at the time, and conveying to Molesworth the lot and dwelling insured, the balance of the consideration to be paid on March 1, 1905. The contract recited that deeds were to be made upon payment of the balance of the consideration, and deeds were afterwards made. But after the contract was executed, and before the deeds were made, and before possession was given, the insured dwelling burned. The policy contained this clause:

"The entire policy shall be void if the interest of the insured be not truly stated herein, or if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple, or if any change other than by the death of the insured takes place in the interest, title or possession of the subject of insurance, whether by legal process or judgment or voluntary act of the insured."

The court held that plaintiff could not recover; that the contract of sale vested an equitable interest in Molesworth, and that he obtained a right to the legal title; that the loss occasioned by the fire was Moleseworth's loss, and not Manning's. The court in discussing the question in the Manning Case used this language:

"After a valid contract of sale of real property and before a deed is made the vendor merely holds the legal title in trust for the purchaser, and, if there be unpaid purchase money, as security therefor. All must agree that after a valid contract of sale all appreciation of the property is the purchaser's, and so also necessarily all depreciation. So, therefore, in all jurisdictions, where, as in this state, the property is at the risk of the purchaser between the execution of a contract of sale and of a deed, it must be held that the execution of such contract, binding upon both parties, changes the interest of the seller and brings him within the terms of the provision in the contract of insurance above set out and avoids the policy."

Snyder v. Murdock, 51 Mo. 175, is cited in the Manning Case as supporting the conclusion there reached. In the Snyder Case the court held that, after an executory contract for the conveyance of real estate has been entered into, by the execution of a bond for title and notes for the purchase money, the property is at the risk of the purchaser, and if it burns it is his loss, and if it increases in value it is his gain, and that this is the settled equity doctrine based upon the principle that in...