Locher v. Kuechenmiester
| Decision Date | 27 November 1906 |
| Parties | LOCHER, Respondent, v. KUECHENMIESTER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
AFFIRMED.
STATEMENT.--This is a suit on a promissory note. The facts material to the controversy are as follows. The defendant and his brother John H. Kuechenmiester. are the sole owners of the stock of a corporation, the St. Louis Paper Can and Tube Company, which corporation does a manufacturing business and has its office in the city of St. Louis. It appears that the two brothers Henry and John H. Kuechenmiester, desired each to insure his life in favor of the other brother so that in the event of the prior death of either, the survivor might realize available cash from such insurance to purchase from the estate of the deceased brother the shares of stock owned by him in the corporation mentioned and continue the business thereof. The plaintiff is the general agent in St. Louis of the New York Life Insurance Company, and as such, called upon the defendant, Henry Kuechenmiester and his brother, John H Kuechenmiester, at their place of business, July 29, 1904, to procure their applications for such insurance. After some negotiations, each brother made application for a policy in said company in the amount of $ 10,000 on his life in favor of the other brother. There is some conflict in the testimony as to what kind of insurance was applied for, the two brothers maintaining that each applied for a $ 10,000 twenty-premium policy on his life in favor of his brother whereas the agent maintains that the policies were to be ordinary life policies. We do not regard this as material however, in the light of the subsequent conduct of the parties. At any rate, the agent procured the application from each brother for a $ 10,000 life insurance policy in favor of the other brother and transmitted the same to the company. When these propositions for insurance were submitted to the home office of the company in New York, it did not see fit to approve the same in the form submitted and therefore erased therefrom the words "joint life" and issued to the defendant Henry Kuechenmiester, an ordinary life policy for $ 10,000, payable to his brother, John H. Kuechenmiester, otherwise in accord with his application therefor. Upon an examination of the application for insurance on the life of John H. Kuechenmiester, it discovered that it was stated in said application that both itself, the New York Life Insurance Company, and the Prudential Insurance Company, had theretofore declined to issue policies on his life and further, that because of certain facts which were made to appear in the medical examination, said John H. Kuechenmiester was found to be an undesirable risk. Thereupon the company rejected the proposition for insurance as submitted in his application and declined to issue the policy he desired. The company, however, did issue a policy known as a 4.10 lien policy on his life and mailed it to the plaintiff, its agent, along with an amended application for the insured to execute asking such insurance, provided he saw fit to accept the same. The policy which the company issued was for a much higher rate of premium than the one for which he originally applied. It provided in substance that in the event of his prior death at any time before seven years from its date, the company would pay to Henry Kuechenmiester, his brother, the sum of $ 6,000 instead of $ 10,000 as originally applied for by him, and that in event of his death after seven years from that date, it would pay to Henry Kuechenmiester $ 10,000, etc. The matter seems to have been considered for a considerable time by the company as the policies were not issued until September. They were written to take effect July 21, 1904, however, as requested by the insured on their original application of date July 29, 1904. The two policies were received by the plaintiff, the general agent, from the company on September 26, 1904, and on that date he called upon the defendant, Henry Kuchenmiester and his brother, John H. Kuechenmiester, at their place of business for the purpose of submitting the policies and inducing them to accept the same as written. Thus far, there is no material discrepancy in the evidence of the parties on either side. As to what occurred on this occasion, the parties do not agree and we will therefore set forth the version of each.
The plaintiff says that on September 26th, he called upon the Kuechenmiester brothers at their office and presented the policies; that the policy issued to defendant, Henry Kuechenmiester, was the identical policy which he had applied for and that no objection was made thereto by him. The policy issued to John H. Kuechenmiester subject, of course, to his acceptance, instead of a $ 10,000 ordinary life, was a $ 10,000 policy with a 4.10 lien against it; or, in other words, the policy was for $ 6,000 for the first seven years and for $ 10,000 thereafter; that the insured therein, John H. Kuechenmiester, demurred at accepting the same, inasmuch as it was not the policy for which he had applied; that he said he did not want the policy with a lien against it, etc., and that the rate of premium was higher than that for which he had applied and that he did not feel able to pay so much premium. Some conversation between the parties ensued; that the defendant Henry Kuechenmiester, was entirely satisfied with his policy, and after discussing the matter, took up the argument with his brother, John H. Kuechenmiester and insisted that he had better accept the policy proffered inasmuch as he had been declined theretofore by this and the Prudential Company and that his physical condition was such as to render it difficult for him, if not impossible, to obtain insurance elsewhere; that finally, in consideration of these facts, John H. Kuechenmiester agreed to accept the policy as issued; that then the defendant, Henry Kuechenmiester became conservative and suggested that inasmuch as the premiums on the two policies were about $ 136 more than was anticipated, it was doubtful as to whether they could, just at that time, spare so much money from their business and they took up their check book and figured on their balance in bank, etc., and while they were thus engaged in checking up the bank account, John H. Kuechenmiester suggested to defendant, Henry Kuechenmiester: "Well, I think you had better give him a check for the $ 225 and some cents premium on your policy and give him a note for the premium on mine," and Henry Kuechenmiester replied: At this time plaintiff states: "And I said to them, 'Here, as it seems to be only a question as to when you want to pay the money, we can do away with that; give me a due bill and put these policies in force, because you can't afford to go uncovered,' and I said in order to get all the advantages coming from this contract, I would pay the company for them on the 30th day of September, and I said: 'Now, you give me a duebill and put them in force and I will pay the company and we will decide as to what time it shall be paid when I come back.'" That both brothers were present and participated in the discussion with reference to the check proposition and the note proposition, examination of the bank accounts, etc., and when the plaintiff suggested the duebill proposition; and that both of them consented to accept the policies and execute the due bill; that John H. Kuechenmiester thereupon signed and executed the amended application for his policy as issued, which amended application is in evidence before us, and that at this time, John H. Kuechenmiester was called to another part of the store and plaintiff drew up the duebill for the amount of the premiums on the two policies, Henry Kuechenmiester signed the same in the absence of his brother, and the plaintiff departed, taking the duebill with him and leaving them in possession of the policies.
The suit is predicated upon the duebill mentioned. It is denominated a promissory note in the petition. It is in words and figures as follows:
Plaintiff further states that on September 30th, he met the defendant Henry Kuechenmiester, on the corner of Broadway and Locust streets, and said to him: "This is the day I have to pay the premiums to the company," and defendant said: "Do as you like." Henry Kuechenmiester also said: "My brother wants to see you," and the plaintiff replied that he would see him as soon as he could; that he thereupon remitted to the insurance company on that date the amount of such premiums, less his commission, and on October 3d or 4th, called upon John Kuechenmiester, in obedience to the request communicated to him by Henry Kuechenmiester, when John H. Kuechenmiester requested him to take the matter up with the insurance company and induce it to reduce the amount of said policies one-half, as the premiums were more than they felt like paying, and John H. Kuechenmiester said: "If you can induce them to reduce these policies to $ 5,000 each, I will give you a check for the entire premium at once." Thereupon the plaintiff requested him to give him a check for one-half of the duebill and he said: "No, you are out...
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