Mers v. Franklin Ins. Co.

• Decision Date: 31 October 1878
• Parties: MERS v. THE FRANKLIN INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

68 Mo. 127

MERS

v.THE FRANKLIN INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Cass Circuit Court.--HON. FOSTER P. WRIGHT, Judge.

Adams & Sherlock for appellant.

The only statement in the policy as to ownership was the word “his” before the description of the property insured. This taken in connection with the condition as to the statement of the interest of the insured imports an absolute and entire ownership. Clay F. and M. Ins. Co. v. Huron Salt and Lumber Co., 31 Mich. 346; s. c., 14 Am. Law Reg. (N. S.) 460; and this amounts to a misrepresentation, which avoids the policy, Catron v. Tenn. Ins. Co., 6 Hump. 176; Brown v. Williams, 28 Me. 262; Philips v. Knox Co. Mut. Ins. Co., 20 Ohio 178; Leathers v. Ins. Co., 4 Fost (N. H.) 259; Warner v. Middlesex Mut. Assn., 21 Conn. 444; Wilbur v. Bowditch Mut. Ins. Co., 10 Cush. 446; Birmingham v. Empire Ins. Co., 42 Barb. 457.

R. O. Boggess for respondent.

Respondent had an insurable interest in the property. And not being called upon by the agent to state the nature or extent of his title or interest, he was not bound to do so, and his failure so to do, constitutes no barrier to his right to recover. Morrison v. Tenn. Ins. Co., 18 Mo. 262; Boggs v. America Ins. Co., 30 Mo. 63. His interest was absolute. He had a valid, subsisting contract for the purchase and conveyance thereof to himself--this was a feesimple interest. Gaylord v. Lamar Fire Ins. Co., 40 Mo. 13.

HOUGH, J.

This was a suit upon a policy of insurance by which, on the 10th day of March, 1873, the defendant insured the plaintiff for one year against loss or damage by fire to the amount of $2,000, as follows: $1,000 on a twostory frame hotel in Pleasant Hill, Missouri, and $1,000 on personal property. On the 18th day of April, 1873, all of the foregoing property was destroyed by fire. The plaintiff recovered judgment for the full amount of the policy, and the defendant has appealed.

The policy contained, among others, the following condition: “If the interest in the property to be insured be a leasehold interest, or other interest not absolute, it must be so represented to the company and expressed in the policy in writing, otherwise the insurance shall be void.” The written application of the plaintiff for insurance, if any such were ever made, is not in the record, and there is no evidence that the plaintiff made any representation as to the ownership of the house, but it was described in the policy as “his.” It appears from the record that the house in question was sold in November, 1872, to one Yocum at sheriff's sale, under an execution against the plaintiff. On the 16th day of December, 1872, Yocum, by his agent, A. C. Briant, executed and delivered to the plaintiff the following instrument of writing: “This agreement, made and entered into this 16th day of December, 1872, by and between M. B. Yocum, by his agent, A. C. Briant, and F. D. Mers, all of Cass county, Missouri; witnesseth, that whereas, the said M. B. Yocum, on the 22d day of November, 1872, purchased at sheriff's sale, on execution in favor of A. Caruthers and Martha A. Hinchman, as plaintiffs, and against F. D. Mers, defendant, the following described real estate, which was conveyed to said M. B. Yocum by the sheriff, viz.: lots 7 and 8, in block C, also lots 2 and 3, in block D, all in the Pacific Railroad Company's first addition to the city of Pleasant Hill, Missouri; and whereas, the said M. B. Yocum has been compelled to pay divers sums of money for said Mers, it is hereby agreed, by and between said parties, and especially by said M. B. Yocum, by his agent, said A. C. Briant, that if the said Mers shall, on or before the 1st day of June, 1873, pay, or cause to be paid to the said A. C. Briant, as the agent of said M. B. Yocum, his heirs or assigns, the sum of $1,480, then, and in that event, the said M. B. Yocum, by his agent, said A. C. Briant, hereby binds himself, his heirs, assigns, executors or administrators to make, execute and deliver, or cause to be made, executed or delivered to the said Mers a quit-claim deed for the real estate aforesaid. In witness whereof, the said parties have hereto set their names and seals the day and year aforesaid.

A. C. BRIANT,

Agent, M. B. Yocum.

F. D. MERS.”

At the same time the foregoing instrument, which relates to the property in question, was executed, Briant, as the agent of Yocum, leased the hotel to the plaintiff for one year. Briant, in his testimony, said: “The lease was of the same date as the agreement to reconvey, and both executed same date, December 16th, 1872,” and it was in evidence that he received rent from the plaintiff. On the 14th day of July, 1875, Briant, who had in the mean time pur chased the property of Yocum, executed and delivered to the plaintiff a deed therefor. On the 18th day of April, 1873, the day on which the property insured was destroyed by fire, the plaintiff had paid nothing under the written agreement of Yocum to reconvey. On this state of facts the defendant contends that the policy is void as to the building.

1. AGREEMENT TO CONVEY REAL ESTATE.

We think it quite clear from the record that the plaintiff had, at the time of the fire, only a leasehold interest in the building. The instrument executed by Yocum, through his agent, Briant, was not a contract of sale, and conferred upon the plaintiff none of the rights of a vendee of the property in question, and, hence, does not come within the rule laid down in Gaylord v. Lamar Fire Ins. Co., 40 Mo. 13. So far as appears, this instrument...