Millers' Nat. Ins. Co. v. Kinneard

• Citation: 26 N.E. 368,136 Ill. 199
• Parties: MILLERS' NAT. INS. CO. v. KINNEARD.
• Decision Date: 22 January 1891
• Court: Supreme Court of Illinois

136 Ill. 199

26 N.E. 368

MILLERS' NAT. INS. CO.

v.KINNEARD.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Appeal from appellate court, first district.

Hoyne, Follansbee & O'Connor and Myron H. Beach, for appellant.

Thomas Bates, for appellee.

BAKER, J.

In this action of assumpsit, brought by appellee against the appellant corporation in the circuit court of Cook county, he got verdict and judgment for $4,676.99, and the judgment was affirmed in the appellate court. Appellee was owner of a mill, elevator, and other property, worth over $30,000, and on which he had insurance in various fire companies, including appellant, amounting to $17,500. The policy of appellant was for $5,000. In July, 1885, the insured premises were destroyed by fire. The declaration herein did not count upon the policy of insurance, but contained the common counts and two special counts, based on an alleged compromise and settlement made between appellee and the appellant and the other insurance companies, and in and by which appellee agreed to receive, in full of all demands, and appellant and the other companies to pay, the sum of $13,500, within 60 days from the date of the settlement, of which sum appellant promised to pay the sum of $3,872.19 within said 60 days. All issues of fact in the case are by the verdict and the judgment below conclusively settled in favor of appellee. It is claimed by appellant that two questions of law are involved in the ruling upon the instruction and otherwise of the trial and appellate courts. It is suggested that these questions are embraced in the following propositions: (1) Whether the oral agreement alleged to have been made with Mr. French, the adjuster, was or is valid. (2) Whether Mr. French, as adjuster or otherwise, had authority to make such an agreement, or to bind appellant thereby; and whether appellant is bound by it.

French, the adjuster, arrived on the ground on July 20th, and for several days was engaged in investigating and adjusting the loss. Appellee was insisting that his damages were greater than the amounts which he finally consented to accept in full satisfaction of his claims, and the adjuster first fixed the loss at less than the sum eventually agreed upon. On July 22d the parties came to an understanding, and the adjuster made out an ‘adjuster's agreement,’ which they both signed. This written agreement fixed the amount of loss on each class of insured and destroyed property, and the total loss, and also the insurance upon each class of property, and the total insurance. It covered only the points of amount of loss and of insurance. It is a conclusively established fact of the case that, in addition to this ‘adjuster's agreement,’ there was a parol agreement that within 60 days from that date appellant would pay $3,872.19, and that appellee would accept the same in full of all his demands under the policy. This parol contract is not in conflict with the written agreement, but it makes provisions for matters which are untouched by the latter. No reason is perceived why a written contract may not be executed, and the execution of such contract be the consideration for another and a parol contract. The oral agreement upon which the recovery in this case is based, was and is a valid contract. A compromise settlement of an unadjusted and disputed claim in valid and can be enforced. Insurance Co. v. Chesnut, 50 Ill. 111, the suit was not upon the policy, but upon an alleged settlement and promise to pay, and the judgment recovered upon the new promise was affirmed. It was there held that the new agreement was not nudum pactum; that...