National Fire Insurance Company v. Eastern Building & Loan Association, 10,992

• Court: Supreme Court of Nebraska
• Writing for the Court: ALBERT, C.
• Citation: 88 N.W. 863,63 Neb. 698
• Parties: NATIONAL FIRE INSURANCE COMPANY v. EASTERN BUILDING & LOAN ASSOCIATION. [*]
• Docket Number: 10,992
• Decision Date: 22 January 1902

88 N.W. 863

63 Neb. 698

NATIONAL FIRE INSURANCE COMPANY
v.
EASTERN BUILDING & LOAN ASSOCIATION. ^[*]

No. 10,992

Supreme Court of Nebraska

January 22, 1902

ERROR from the district court for Douglas county. Tried below before KEYSOR, J. Reversed.

REVERSED AND REMANDED.

Lodowick F. Crofoot and Thomas Creigh, for plaintiff in error.

E. G. McGilton and James McCabe, contra.

ALBERT, C. DUFFIE and AMES, CC. concur.

OPINION [88 N.W. 864]

[63 Neb. 699] ALBERT, C.

At the time of the loss by fire, hereinafter mentioned, the residence of A. A. McKim was insured against loss or damage by fire in the National Fire Insurance Company. The policy contained a clause whereby the loss, if any, should be payable to the Eastern Building & Loan Association, mortgagee, as its interest might appear. On the 8th day of February, 1895, the residence was destroyed by fire. Both the insurance company and the loan association were notified of the loss, and within a few days thereafter the adjuster of the insurance company and one W. J. Trotter, representing the loan association, and the assured, McKim, met and adjusted the loss at the agreed sum of $ 435. Thereupon the adjuster drew a sight draft on the general agent of the insurance company for that amount, in favor of McKim and the association, which is as follows:

"No. 2362. GOTHENBURG, NEB. Feb. 21, 1895.

"Pay to the order of A. A. McKim, and the Eastern Building & Loan Association, four hundred thirty-five and no-100 dollars ($ 435) in full satisfaction for all claims or demands for loss or damage by fire. Value received, and charge to the account of policy No. 223833 of the National Fire Ins. Co. THEO. GARDNER, Adjuster.

"To FRED. S. JAMES, General Agent,

"174 La Salle Street, Chicago, Ill."

[63 Neb. 700] When the draft was drawn, but before delivery, McKim objected to its delivery to Mr. Trotter until the loan association should furnish him with a statement of his account with such association and with a release of the mortgage. Thereupon, by agreement of parties, the draft was deposited with one Lloyd, cashier of the local bank, to be held by him until the association and McKim could agree upon the division of the proceeds. The negotiations which followed between McKim and the association, relative to the share they should be paid, respectively, from said proceeds, extend over a considerable period. Pending those negotiations, it was agreed between Trotter and McKim, that Lloyd should present the draft for payment, and hold the proceeds until the division should be agreed upon. In pursuance of this plan, McKim indorsed the draft in his own behalf, and Mr. Trotter in behalf of his client, the loan association, and instructed Lloyd to present it for payment. Whereupon the draft was forwarded to the insurance company, and paid by it, and the proceeds credited to McKim and the loan association on the books of the said local bank. Afterward a division was agreed upon and McKim's share was paid to him, and the share of the loan association was paid to its attorney, Mr. Trotter. It appears that Mr. Trotter at the time had an account against the loan association for services rendered,...