Lincoln Fire Ins. Co. of New York v. Lilleback

• Decision Date: 22 January 1938
• Citation: 130 Fla. 635,178 So. 394
• Parties: LINCOLN FIRE INS. CO. OF NEW YORK v. LILLEBACK et al.
• Court: Florida Supreme Court

178 So. 394

130 Fla. 635

LINCOLN FIRE INS. CO. OF NEW YORK v. LILLEBACK et al.

Florida Supreme Court, Division B.

January 22, 1938

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action on fire policies by John P. Lilleback and another against the Lincoln Fire Insurance Company of New York. To review an order setting aside a verdict for the defendant and granting a new trial, the defendant brings error.

Affirmed.

COUNSEL Batchelor & Dyer, of Miami, and Earnest &amp Lewis, of West Palm Beach, for plaintiff in error.

Boozer & Boozer, of West Palm Beach, for defendant in error.

OPINION

BROWN Justice.

This is the second appearance of this case here. See Lilleback et al. v. Lincoln Fire Insurance Co. of New York, 120 Fla 289, 162 So. 866, 867. The action is upon two insurance policies covering a house located in Kelsey City, Fla., which was destroyed by fire on the night of September 5, 1932. Lilleback sued as purchaser of the property insured and Diamon as assignee of Lilleback's vendor. Total loss of $500 under each policy was claimed, plus attorney's fees.

The policies sued upon among other things provided: (1) That they shall be void if the interest of the insured be not truly stated therein; (2) that they shall be void if the assured be not the unconditional and sole owner; (3) that they shall be void if any material matter touching the insurance or the subject thereof be misrepresented; (4) if any change in the title or interest of the property be made without the company's consent endorsed on the policy, such change will invalidate it.

The insurance contracts insured J. P. Lilleback 'as purchaser under contract,' and the Florida Bank & Trust Company as trustee for Palm Beach county, Fla. At the first trial of this cause, the circuit judge directed a verdict for the defendant, at the conclusion of the evidence and testimony presented by the plaintiff, on the ground that the alleged contract relied on by the plaintiffs was nothing more than an option and was not a contract to purchase. On appeal this court had before it for consideration the question whether the contract was a contract of purchase or merely an option. Mr. Justice TERRELL, speaking for the court, said:

'An examination of the instrument relied on by plaintiff to support his title disclosed that it was when executed nothing more than an option to purchase. It is unilateral and imposes no obligation on Lilleback other than to pay $100 for the option in addition to $50 per month during its life with 8 per cent. interest. It was not to be recorded but held until the time of exercising the privilege to purchase expired which was November 25, 1931. If purchase was not made by expiration date, it automatically terminated without liability to refund anything paid on it.

'It is our view, however, that when the option to purchase was accepted and the optionee commenced making payments on it, it then ripened into a contract to purchase. Frissell v. Nichols, 94 Fla. 403, 114 So. 431. It is shown that the option was accepted and $710 of a purchase price of $2,000 paid on it before the fire. It is also shown that Lilleback took charge of the property promptly and spent considerable money improving it and that he had secured an extension on the time originally allowed for complying with its terms as originally stated. These latter facts all give support to appellants' contention and lend support to his claim of title.

'The option to purchase on the part of Lilleback having ripened into a contract to purchase at the time the insurance was written and long before the fire, we fail to find any misrepresentation as to his title or interest in the lands insured. * * * The judgment below is reversed.'

At the second trial of the cause, the defendants filed three pleas to the plaintiffs' declaration; one alleging that the interest of the insured was not truly stated in the policy; the second plea recited the same facts and alleged that the policy provision requiring unconditional and sole ownership was breached; another plea filed by the defendant insurance company was 'that the fire in the declaration mentioned was caused by the voluntary acts or procurement of the plaintiff Lilleback.' The plaintiff filed a replication denying the allegation that there was no purchase contract and that the plaintiff Lilleback set fire to the house. The cause was tried on these issues and, after hearing the testimony for both plaintiffs and defendant, the jury was charged and brought back a verdict for the defendant. The court set aside the verdict and granted a new trial. From that order this writ of error was sued out.

The questions argued on appeal are:

(1) Did the plaintiff truly state his interest in the property when he stated that he was a purchaser under contract?

(2) Was the plaintiff the unconditional and sole owner of the property when it is shown by evidence that at the time the insurance was written plaintiff only had an option to purchase?

(3) Was the evidence sufficient to support the plea of arson, and should the court have set aside the verdict in favor of the defendant and granted a new trial?

In the present case the learned trial judge stated in his order granting a new trial that 'the evidence failed to substantiate any of the...