Monaghan v. Agricultural Fire Ins. Co.

Decision Date09 April 1884
Citation18 N.W. 797,53 Mich. 238
CourtMichigan Supreme Court
PartiesMONAGHAN and others v. AGRICULTURAL FIRE INS. CO.

It is no defense to an action upon a policy of insurance that the insured, being infants, were not bound by the contract.

A person to whom a promise is made may sue upon it, though the consideration moves from another.

The allowance of a challenge for cause, on account of certain conversation which the juror had heard, sustained as within the discretion of the court.

Counsel in examining a juror have the right to ask him which party he would favor by his verdict if the evidence were evenly balanced.

Where the plaintiff's title is the matter in issue, an allegation in the complaint that the title was derived by will is surplusage, and evidence of title by deed may be admitted.

All contractees must join in suing upon a promise made to them jointly, and any defense that is good against one of them personally will defeat the entire action; nor can such person help the others by assigning his claim to them.

The interests of parties who have jointly taken out a policy of insurance are not severed by the occurrence of a loss; and any subsequent failure upon the part of one of them to comply with the conditions imposed by the policy will defeat any action that may be brought upon it.

In a civil action, when the defense relied upon amounts to the charge of a crime, this defense need only be proved by a preponderance of evidence; but the presumption of innocence exists as in a criminal case, and should be taken into consideration in fixing the preponderance of evidence.

The rule that a stranger to the consideration cannot sue on the contract does not apply, where the contract was made directly with him, and he is therefore, in privity with the defendant.

Wm. S. Tennant, for plaintiffs.

Wisner & Draper, for defendant and appellant.

CHAMPLIN, J.

Plaintiffs are minors, and children of John Monaghan, deceased. In 1876 John Monaghan, being the owner of 80 acres of land, conveyed the north half thereof to his father, Patrick Monaghan, but remained in possession and lived upon it with his family until his death, which occurred in the early part of the year 1879. On the sixth day of January of that year he made his last will, by which, after directing the payment of his debts, he directed his executors to sell whichever 40 acres of his land would sell the best, and pay first the mortgages then against his place, and then certain debts which he named. He also stated in his will: "The other 40 acres to remain as a home for my wife and children, unless my wife Catharine, should marry; then property to be kept for my children." He made no disposition of his personal estate, if he had any. January 31, 1880, Patrick Monaghan conveyed the north 40 acres to the minor children of John Monaghan, and they, with their mother, Kate Monaghan continued to reside in the house upon this 40-acre tract until it was destroyed by fire, in September, 1880.

On August 4, 1880, Kate Monaghan applied for insurance to the agent of defendant. The application was made in behalf of Kate Monaghan, the mother, and Sarah, Jennie, and Willie Monaghan, minor heirs. To the question, "What is your title to or interest in the property?" the answer was "Willed." The application was made out by the agent from information derived from Mrs. Kate Monaghan. The defendant issued a policy by which, in consideration of $14.70, it insured Kate Monaghan, Sarah, Jennie, and Willie Monaghan, minor heirs, against loss or damage by fire or lightning, to the amount of $1,650, as follows:

$ 400 on dwelling-house.

$ 300 on household furniture therein.

$ 200 on family provisions and wearing apparel therein.

$ 275 on barn No. 1.

$ 350 on hay and grain in barn No. 1.

$ 75 on farming utensils in said barn.

$ 50 on harness therein, wagons, and sleighs therein.

$1,650, total.

The policy contained the usual stipulations and conditions relative to proof of loss, and of forfeiture in case of any misrepresentations, concealment, fraud, or false swearing in any statement or affidavit in relation to loss or damage. A fire occurred about the middle of September, 1880, which destroyed the dwelling-house, of which the company was duly notified. It is claimed by the defendant that on the second day of October, 1880, Mrs. Kate Monaghan made an affidavit in which she set forth in detail what property belonging to her was saved from the fire, and what was destroyed thereby, and it claims that in this affidavit she knowingly, and with intent to defraud the company, falsely swore that certain articles of personal property belonging to her were entirely destroyed by the fire, among them a certain sewing-machine; and on the same day, as she claims, by threats of prosecution by the agents of defendant, and by false statements to her, defendant obtained a release. under seal, of all actions against defendant, which was signed by her, and as the guardian of the minor heirs of John Monaghan, deceased; and thereafter the defendant refused to settle or pay any loss occasioned by the fire.

On the seventeenth day of November, 1880, James Murphy was duly appointed the guardian of the minors, and on the eighteenth of December following he made out, in behalf of the minors, and forwarded to the company, proofs of loss of the dwelling insured by the policy. In this proof of loss it is stated that Kate Monaghan, being the mother of said minor heirs, had an interest in the personal property thereby insured, and the said minor heirs being the owners of the real estate and dwelling-house therein insured, and that the building insured belonged to the said minor heirs of John Monaghan, deceased, and that said Kate Monaghan had no interest therein save, possibly, a dower interest or right of possession during their minority, and that she owned the personal property insured, and no other person had any interest in said property. It then states how it was occupied at the time of the fire, when it occurred, the amount of the loss on the dwelling, and that the fire did not originate by any act, design, or procurement on his part, or in consequence of any fraud or evil practice done or suffered by any of said minor children or Kate Monaghan. On the seventeenth day of March, 1881, Kate Monaghan assigned to her children, Sarah, Willie, and Jennie, all of her right, title, and interest in and to all claims against defendant, by reason of the issuing of the policy, and all her rights thereunder. The loss not having been paid within the 60 days after the guardian furnished proofs of loss, he commenced this action to recover the amount insured on the dwelling.

The defendant contends that there is no valid contract of insurance between the parties, for the reason that the minors were incapable of entering into such contract; that contracts of insurance must be mutual, and if the defendant could not have enforced payment of the premium, neither could the company be compelled to perform its contract to indemnify. In the case of New Hampshire Mut. Fire Ins. Co. v. Noyes, 32 N.H. 345, it was held that an infant who had insured his stock of goods was not liable to the company on his premium note, as for necessaries, when the infant interposed the plea of infancy; but the contract of insurance was not held void. Many contracts of infants are not void, but voidable merely, in which case infancy is a personal privilege of the infant of which no one can take advantage but the infant himself while living. Contracts which are manifestly for the benefit of the infant are not void, but voidable merely. The contract of insurance is of this class, and although entered into between the defendant and the minors jointly with their mother is binding on the defendant. There was no fraud or concealment practiced upon the defendant with respect to the infancy of the parties it was contracting with; the policy describes them as minors. This defense is not open to the company.

The circuit judge viewed the contract as one entered into between Kate Monaghan and the defendant for the benefit of herself and children. He instructed the jury that the three children were minors, and of such tender years that they were incapable of entering into the contract; that the contract was between her and the insurance company, for the benefit of the children, with reference to the property named in the policy, and should be construed as a promise on the part of the insurance company to pay to the beneficiaries as named in the policy, as their interests might afterwards appear in case of loss, such sums as they might be entitled to, not exceeding the amount insured. We can see no reason for giving to the policy a different meaning than that which is plainly expressed in the instrument. The application for the insurance was made by Kate Monaghan, the mother of the children, for herself and for them. She was their natural guardian, and at this time there was no guardian appointed over their estate. From her relationship to the children a sufficient authority may be presumed to qualify her to make the application and to pay the consideration to the company for their promise to indemnify. The general rule undoubtedly is that a plaintiff in an action on a simple contract must be the person from whom the consideration of the contract actually moves, and that a stranger to the consideration cannot sue on the contract. Mellen v. Whipple, 1 Gray, 321. But whenever there is a privity of contract between the plaintiff and the defendant, as when the promise is made directly to the plaintiff, although the consideration for the promise proceeds from a stranger, the defendant is liable to the plaintiff in an action upon the contract because...

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