Marden v. Hotel Owners' Ins. Co.

• Decision Date: 25 May 1892
• Citation: 52 N.W. 509,85 Iowa 584
• Parties: MARDEN v. HOTEL OWNERS' INS. CO.
• Court: Iowa Supreme Court

85 Iowa 584

52 N.W. 509

MARDEN

v.HOTEL OWNERS' INS. CO.

Supreme Court of Iowa.

May 25, 1892.

Appeal from district court, Union county; JOHN W. HARVEY, Judge.

This is an action on a policy of insurance against loss by fire. There was a demurrer to the answer, which was sustained. The defendant elected to stand on its answer, and judgment was rendered against it, and it appeals.McDill & Sullivan, for appellant.

T. M. Stuart and F. Q. Stuart, for appellee.

ROTHROCK, J.

1. It will not be necessary to set out the petition, answer, and demurrer in order to present the questions involved in the appeal. The material facts as shown by the pleadings are as follows: The policy, or so much of it as is necessary to be considered, is as follows: “No. 178. $2,500.00. The Hotel Owners' Insurance Company, Mutual, of Creston, Iowa, organized in 1889, in consideration of premium note of fifty dollars, on which I agree to pay all sums of money that may be assessed by the directors thereof, not exceeding the full amount of said note in any one year, do hereby insure O. S. Marden against loss or damage by fire to the amount of twenty-five hundred dollars only on the property below described, [here follows a detailed description of the property, all situated in the town of Kearney, Neb.; application referred to and made a part of this contract,] from Jan. 1, 1890, at noon. Policy self-renewing at each anniversary. Payment of premium to be made on demand, according to the terms of the premium note given to secure the issuance of this policy, which note also renews itself at each anniversary of its date. * * * Be it expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any pledge or assessment given for said insurance, or any part thereof, remains due and unpaid. * * * This contract is made and accepted subject to the above conditions. Witness the seal and signature of the president and secretary of said association at their office in the city of Creston, Iowa, this first day of January, 1890. Attest: GEO. J. DELMEGE, Sec. JOHN GIBSON, Pres.” The plaintiff gave a promissory note for the insurance premium, which note is as follows: “No. 178. $50.00. Creston, Iowa, Jan. 1, 1890. March first, after date, for value received, I promise to pay to the order of the Hotel Owners' Mutual Fire Insurance Company, at their office in Creston, Iowa, fifty dollars. It is hereby expressly agreed that this note is liable to assessments only for losses and expenses of said company during the life of said policy. Does not bear interest, and is not negotiable. That the cancellation of the policy of even number and date herewith, according to its terms, also cancels this note. That eighty per cent. only of the amount of this note will be collected annually. This note is given in payment of premuim for policy of insurance No. 178, of given date herewith, issued to O. S. Marden by the Hotel Owners' Mutual Fire Insurance Company; and I promise that this note shall renew itself on each anniversary of its date, subject to the payments made and to be made and paid annually thereafter, on demand, on each anniversary of its date, so long as the policy aforesaid, which renews itself, with all its terms and conditions on the anniversary of its date, shall continue and remain in force. O. S. MARDEN. Witness: GEO. J. DELMEGE.”

It is conceded that 80 per cent., or $40, of this note became due and payable on the 1st day of March, 1890. It was not paid when due, and on the 10th day of that month the secretary of the defendant company wrote and mailed a letter to the plaintiff, notifying him that if he did not remit promptly suit would be commenced on the note at once. The plaintiff received said letter, and replied that according to his recollection he was to pay the note April 1, 1890, but that if he were in error about the time he would remit if the defendant would at once advise him. This letter was written and mailed at Boston,...