Oldham v. Anchor Mut. Fire Ins. Co.

• Decision Date: 02 February 1894
• Citation: 57 N.W. 861,90 Iowa 225
• Parties: OLDHAM v. ANCHOR MUT. FIRE INS. CO.
• Court: Iowa Supreme Court

90 Iowa 225

57 N.W. 861

OLDHAM

v.ANCHOR MUT. FIRE INS. CO.

Supreme Court of Iowa.

Feb. 2, 1894.

Appeal from district court, Mahaska county; David Ryan, Judge.

Action to recover upon a policy of insurance against loss by fire. The case was tried to a jury, and on motion a verdict was ordered for the defendant. Plaintiff appeals.Seevers & Seevers, for appellant.

Sullivan & Sullivan and Bolton & McCoy, for appellee.

GIVEN, J.

1. But a single question is presented on this appeal, and that question is sufficiently shown by appellant's abstract of the pleadings. There was no necessity for setting out the evidence contained in additional abstracts, as it simply affirms that which is admitted in the pleadings. The pleadings show that the policy sued upon was issued to William Oldham, Jesse Garner, and George Ney, insuring them against loss by fire to the amount of $500 on certain machinery described, used by them as partners in the business of mining and selling coal, which property was destroyed by fire January 16, 1891, of which due notice and proof were made. Prior to the fire, Jesse Garner and George Ney orally sold and delivered the property insured to the plaintiff, who assumed their obligations with respect thereto. After the fire, Garner and Ney, in writing, transferred said policy to the plaintiff. The policy contains this provision: “That if the property be sold or transferred, or any change take place in the title or possession, whether by legal process or judicial decree or voluntary transfer or conveyance, without written permission of this company on this policy, then this policy shall be void.” Plaintiff does not allege, nor is it claimed, that the company had given permission for, or had any knowledge of, said sale and delivery. The question presented is whether that sale and delivery rendered the policy void. While it may be true, as claimed, that each partner had an insurable interest, and might have taken insurance thereon in his own name, we think it is evident that this insurance was to the partnership. The petition shows, and the answer admits, that the policy was to Oldham, Garner & Ney, not separately, but jointly. It was upon property belonging to them, and being used by them as partners in their partnership business, and the insurance was in the sum of $500 to the three persons insured. The only facts disclosed in the evidence not shown by the pleadings is that this partnership was known as Oldham, Garner & Ney, and sometimes as Standard No. 2. If a note had been given by or in the name of these three persons on...