Jones v. Phx. Ins. Co. of Hartford, Conn.

• Decision Date: 10 February 1896
• Citation: 97 Iowa 275,66 N.W. 169
• Parties: JONES v. PHOENIX INS. CO. OF HARTFORD, CONN.
• Court: Iowa Supreme Court

97 Iowa 275

66 N.W. 169

JONES

v.PHOENIX INS. CO. OF HARTFORD, CONN.

Supreme Court of Iowa.

Feb. 10, 1896.

Appeal from district court, Calhoun county; George W. Paine, Judge.

Action on a policy of fire insurance. Judgment for plaintiff, and defendant appealed. Reversed.R. W. Barger and Stevenson & Lavender, for appellant.

Botsford, Healy & Healy, for appellee.

GRANGER, J.

On the 31st day of March, 1892, the defendant company issued its policy of insurance to Jones & Kerstetter, of Manson, Iowa, for the sum of $1,900 on a stock of merchandise, and for $100 on their store fixtures and furniture. On the 31st day of March, 1893, the stock of goods was totally destroyed by fire, and this action is to recover on the policy. A defense pleaded to the action is that, before the loss, the property insured was sold, or the title or possession of the property, or a part of it, was transferred or changed. The defense is based on the following clause of the policy: “This policy shall be void in the following instances, unless consent is indorsed by the company hereon, namely, * * * if the said property shall be sold, or this policy assigned, or if the title or possession of the property, or any part thereof, is transferred or changed (other than by succession, by reason of the death of the assured), whether by legal process, judicial decree, voluntary transfer, conveyance, or otherwise.” The contention, in this respect, is one of fact, it not being contended but that a violation of the provision will avoid the policy. Such a rule of law has been too many times announced to be open to question. It is, however, contended that, under the particular facts of this case, there was no breach of the conditions of the policy, and this leads us, briefly, to notice the facts. They appear, without dispute, as follows: That Jones and Kerstetter were a firm, engaged in the mercantile business, when the policy was given, and it was made to the firm, which, as such, owned and had possession of the stock insured. In November after, because the business did not amount to enough to warrant both to continue in it, it was agreed that Kerstetter should retire. To this end they estimated the value of the stock on hand, and their debt and credit accounts. The estimate disclosed that the debt and credit accounts were about equal, so that one offset the other, which left for division the stock of goods, which was valued at $1,900. As Jones was not able to buy Kerstetter's interest for cash, he made his notes to him for $950. The notes were not made till some days...