Mlnazek v. Libera
| Decision Date | 24 May 1901 |
| Docket Number | Nos. 12,548 - (91).,s. 12,548 - (91). |
| Citation | 83 Minn. 288 |
| Parties | JOHN MLNAZEK v. ALBERT LIBERA and Another.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
McLaughlin & Boyeson and Webber & Lees, for appellant.
Brown, Abbott & Somsen, for respondents.
Appeal from an order overruling a general demurrer to the complaint. The complaint alleges substantially the following facts: Plaintiff and defendant Libera were on July 24, 1894, and prior thereto, co-partners engaged in contract work under the firm name of Libera & Mlnazek. On the day named, defendant Standard Life & Accident Insurance Company issued and delivered to the co-partnership a contract of insurance thereby indemnifying the firm against liability for injury to any of their employees caused while engaged in the course of their employment, and by which it contracted to pay to the firm all sums which they might become liable for in case of such injuries during the time stated in the policy. Subsequent to the issuance of the policy, and during its life, the firm was engaged in the digging and construction of a cistern at Walnut Grove, this state, in and about which two of their employees were killed by the caving in of the walls of the cistern. Separate actions were subsequently brought by the personal representatives of the deceased laborers against the co-partnership, in which a total recovery of about $6,000 was obtained; and the judgments stand as a liability against the firm, as well as against the individual members thereof. The firm is, and was at the time of the recovery in said actions, wholly insolvent, individually and as co-partners. Prior to the commencement of this action an accounting was had between them of all firm matters, save the liability of the insurance company, and the co-partnership dissolved. There are no firm assets, other than the said policy of insurance. The complaint further alleges that defendant Libera fraudulently connived and conspired with the insurance company to cheat and defraud plaintiff out of his interest in the policy, and to that end, by false and fraudulent representations as to its contents, procured plaintiff to sign a written agreement relinquishing and releasing the company from all liability thereon in consideration of the payment of the sum of $500. The written release alleged to have been thus fraudulently obtained and entered into between the company and Libera purports to release the company from all obligations under the policy, and is signed by the firm and by each individual member.
In a former action between the same parties, brought to reform this contract and to recover on the policy, which is reported in 78 Minn. 151, 80 N. W. 866, it was held that the contract could not be reformed, because to do so would make a contract neither party intended to enter into, viz., a contract which would, in effect, release the company as to one of the firm, and render it liable as to the other. But it was further held, because the contract could not be reformed, plaintiff was not remediless, and was entitled to every right of which he was deprived by the fraud of his co-partner and the company. The complaint in its present form was evidently drawn to meet the suggestions of the court in that case, and we are of opinion that it states a cause of action, within the law as there laid down.
1. Appellant contends that no cause of action is stated, because the policy is not shown by the complaint to be a firm asset. The contention in this respect is that the complaint alleges that the copartnership was formed on September 24, 1894, and that, as the policy was issued prior to that time, it could not have been issued to the firm. A fair and reasonable construction of the complaint is a full and complete answer to this contention. The...
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