J. B. Ehrsam Mach. Co. v. Phenix Ins. Co.
| Decision Date | 17 January 1895 |
| Citation | 43 Neb. 554,61 N.W. 722 |
| Parties | J. B. EHRSAM MACH. CO. v. PHENIX INS. CO. |
| Court | Nebraska Supreme Court |
1. Where an applicant for insurance falsely represented that he had title to the property in respect to which said insurance was sought, a provision in the policy that such false representation would avoid the policy should be enforced, in the absence of a showing to the contrary.
2. Where a policy provided that the alienation of the title of the insured without the knowledge or assent of the insurer would avoid the policy, this provision will be enforced when no reason to the contrary is shown to exist.
Error to district court, Franklin county; Gaslin, Judge.
Action by the J. B. Ehrsam Machine Company against the Phenix Insurance Company. From a judgment for defendant, plaintiff brings error. Affirmed.F. I. Foss, for plaintiff in error.
J. Fawcett and Fawcett, Churchill & Sturdevant, for defendant in error.
On the 11th day of April, 1889, the J. B. Ersham Company agreed to sell to the Eagle Milling Company, of Franklin county, Neb., certain machinery for use in its gristmill. Payments were to be made as follows: $150 in cash, of which the receipt was acknowledged; $200 on receipt of machinery; $218.58 three months from shipment; $218.58 six months from shipment; $218.59 nine months from shipment. For the deferred payments, promissory notes were given by the Eagle Milling Company, in each of which was this provision, immediately following a description of the property: “And delivery of said personal property is made to the maker hereof upon the express condition that the title to the said personal property shall remain in the payee hereof, his assigns, and his legal representatives, until this note is paid in full, together with all costs of collection.” These notes have not yet been paid. After the delivery of the aforesaid personal property to the Eagle Milling Company, that company insured it with defendant in error, loss, if any, being made payable to the J. B. Ehrsam Machine Company as its interest might appear. During the time covered by the policy of insurance the Eagle Milling Company transferred its interest in the insured property to Louise S. Schwartz, who was the holder thereof at the time the property was destroyed. Notwithstanding a provision in the policy that the transfer of the interest of the assured in the property would operate to avoid the policy itself, unless assented to by ...
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