Hubbard v. Home Insurance Company of New York

• Decision Date: 05 June 1920
• Citation: 222 S.W. 886,205 Mo.App. 316
• Parties: J. M. HUBBARD and W. A. PERRY, Doing Business as HUBBARD & PERRY, Respondents, v. HOME INSURANCE COMPANY OF NEW YORK, Appellant
• Court: Missouri Court of Appeals

222 S.W. 886

205 Mo.App. 316

J. M. HUBBARD and W. A. PERRY, Doing Business as HUBBARD & PERRY, Respondents, v. HOME INSURANCE COMPANY OF NEW YORK, Appellant

Court of Appeals of Missouri, Springfield

June 5, 1920

Appeal from Circuit Court of Wright County.--Hon C. H. Skinker Judge.

AFFIRMED.

Judgment affirmed.

Fyke Snider & Hume for appellant.

(1) The trial court erred in refusing to give defendant's declaration No. 1 for the reason there had been a change of interest, title or possession of the hay insured prior to its destruction, contrary to the policy terms, and the insurance was thereby made void. Snyder v. Murdock, 51 Mo 175; Manning v. L. & L. & G. Ins. Co., 125 Mo.App. 456; Vancouver National Bank v. Law, Union & Crown Ins. Co., 153 F. 440; Skinner v. Dry-Dock Co., 43 A. 85. (2) The finding is excessive. Plaintiffs were not, if entitled to recover on the policy, entitled to recover more than the loss they sustained by the fire, and the evidence shows they did not sustain a loss for more than $ 778.40 instead of $ 1378.40, the amount of judgment. 1 Joyce on Insurance, 79; Davis v. Phoenix Ins. Co., 43 P. 1115, 111 Cal. 409.

Lamar, Lamar & Lamar for respondent.

(1) If a mass is actually delivered, and weighing or counting is all that is necessary to fix the price, title may pass, but where there is no delivery and no separation so that the part contracted can be known or distinguished from other parts of one mass no title passes. Grocer Company v. Clements, 69 Mo.App. 446; Metal Company v. Daugerty, 204 Mo. 71; Ficklin v. Tinder, 161 Mo.App. 283, 288; Boyer v. Lumber Company, 187 Mo.App. 523, 527; Ober et al. v. Carson's Ex., 62 Mo. 209. (2) If anything remains to be done between buyer and seller, such as delivery, where the contract is for vendor to deliver them, title does not pass until such delivery. Thomas v. Ramsey, 47 Mo.App. 84, 99; Fairbanks v. Railroad, 167 Mo.App. 286, 291; Sate v. Swift, 198 S.W. 457.

BRADLEY, J. Sturgis, P. J., and Farrington J., concur.

OPINION

BRADLEY, J.--

On August 22, 1918, defendant issued its policy for $ 1400 insuring defendants 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 22nd 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 $ 1378.40, 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 cashed. 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 22nd. 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 the clause provided. Plaintiffs contend that there was no separation or setting a part 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 Company, 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 $ 4000 to be paid for by paying $ 500 at the time, and conveying to Molesworth the lot and dwelling house 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 Molesworth'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 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 equity what is agreed to be done must be considered as done. In Moseley v. Insurance Co., 109 Mo.App. 464, 84 S.W....