Mckibban v. Des Moines Insurance Company

Decision Date15 May 1901
Citation86 N.W. 38,114 Iowa 41
PartiesJAMES MCKIBBAN v. THE DES MOINES INSURANCE COMPANY, Appellant
CourtIowa Supreme Court

Appeal from Madison District Court.--HON. A. W. WILKINSON, Judge.

ACTION in equity to require the defendant to credit $ 800 claimed to be due to the plaintiff on a policy of insurance against a loss by fire issued to him by the defendant on a bond and mortgage executed by the plaintiff, now owned by the defendant. The defendant answered, setting up certain defenses to plaintiff's right to recover on the policy and, by way of counterclaim asks judgment and foreclosure on said bond and mortgage. The court found in favor of the plaintiff on his policy in the sum of $ 845.75, and in favor of the defendant on its counterclaim in the sum of $ 1,968 and $ 51.22 attorney's fees, and $ 2.25 costs of abstract, and rendered judgment and decree of foreclosure in favor of the defendant for the balance. The defendant appeals.

Affirmed.

Read & Read for appellant

Dabney & Cooper for appellee.

OPINION

GIVEN, C. J.

I. There is no question but that, if the plaintiff is entitled to recover on the policy sued on, he should have the amount credited on the bond set up in the counterclaim. Neither is it questioned but that the defendant is entitled to judgment and foreclosure on its counterclaim. The contentions are solely as to the plaintiff's right to recover on his policy. The policies and applications to be noticed are in the usual form, and contain the usual warranties. There are but few questions to be considered, yet the facts are somewhat numerous and complicated, but the following, we think, will be sufficient for the purpose of the case: The plaintiff was the owner of a farm of 153 acres, with a house and barn thereon. About July 26, 1896, he made two applications, through Mr. Tiderick, a soliciting agent of the defendant, for two policies of insurance,--one on the house and certain personal property, and the other on the barn and certain other personal property,--stating in these applications that the property was incumbered by a mortgage for $ 2,000, due in five years. The applications were made out by Mr. Tiderick, and, when signed, were forwarded, and two policies were issued thereon by the defendant August 6, 1896. At the time the applications were made, there were two mortgages on the property, aggregating $ 2,260. Plaintiff had applied to the Northwestern Mutual Life Insurance Company for a loan of $ 2,300 for the purpose of paying off these mortgages, and had been informed by that company that a loan of $ 2,000 would be made to him. These facts were known to Mr. Tiderick at the time he made out the applications. The Northwestern Mutual Life Insurance Company made a loan of $ 1,800 to the plaintiff, taking said bond and mortgage, dated August 5, 1896, which it since sold and assigned to the defendant. In obedience to the requirement of said company, and at the request of the plaintiff, the defendant canceled said house and barn out of said policies, leaving the policies on the personal property only; and in lieu thereof, on the 9th day of September, 1896, issued to the plaintiff, without any further application, the policy sued upon, he paying in full the premium. Said existing mortgages were paid with the money derived from said loan and otherwise, and fully satisfied. On August 15, 1896, the plaintiff gave a mortgage on the property to one Shriver for $ 1,315, and on April 21, 1897, another for $ 515, both of which were afterwards renewed,--one for $ 1,337.50, and the other for $ 537.50. On the 8th day of December, 1897, said barn and its contents were totally destroyed by fire, and the loss of the personal property was subsequently settled for in full. As to these facts there is no dispute. Other facts will appear in connection with the discussion of the questions to be considered.

II. The defenses pleaded against recovery on the policy are, in substance, these: (1) Misrepresentations in the applications as to the amount of incumbrance on the insured property. (2) Incumbering the property in excess of the amount stated in the applications and allowed in the policy, without the knowledge or consent of the defendant. (3) That plaintiff procured the policy sued...

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1 cases
  • McKibban v. Des Moines Ins. Co.
    • United States
    • Iowa Supreme Court
    • May 15, 1901
    ... ... W. Wilkinson, Judge.Action in equity to require the defendant to credit $800 claimed to be due to the plaintiff on a policy of insurance against loss by fire issued to him by the defendant on a bond and mortgage executed by the plaintiff, now owned by the defendant. The defendant ... Plaintiff had applied to the Northwestern Mutual Life Insurance Company for a loan of $2,300 for the purpose of paying off these mortgages, and had been informed by that company that a loan of $2,000 would be made to him ... ...

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