Pringle v. Des Moines Ins. Co.

• Decision Date: 17 December 1898
• Citation: 107 Iowa 742,77 N.W. 521
• Parties: PRINGLE ET AL. v. DES MOINES INS. CO.
• Court: Iowa Supreme Court

107 Iowa 742

77 N.W. 521

PRINGLE ET AL.

v.DES MOINES INS. CO.

Supreme Court of Iowa.

Dec. 17, 1898.

Appeal from district court, Jefferson county; Robert Sloan, Judge.

Action to recover upon a policy of insurance against fire. The cause was tried to the court, and from a judgment in plaintiff's favor the defendant appeals. Affirmed.McVey & McVey and Leggett & McKemey, for appellant.

Raney & Simmons, for appellee.

WATERMAN, J.

The policy in suit was issued upon the dwelling house, outbuildings, furniture, and other household articles belonging to plaintiff. There was a loss by fire of property, and the present action is to recover therefor. The policy contained this condition: “If any change take place in the title, ownership, or possession by mortgage, judgment, lien, lease, sale, incumbrance, or any other manner whatever (except by succession or devise, consequent upon the death of the assured), unless the assent of the company be indorsed thereon, then this policy shall immediately terminate.” One defense is that this condition was violated by the assured. The facts as to this matter are that the policy was issued February 7, 1895. The fire occurred October 24th of the same year, and on the 28th day of August preceding the fire Pringle and wife entered into a contract with one O. S. Hall, which is as follows: “That the said parties of the first part [the plaintiffs] have this day bargained and sold, and do hereby agree to convey, to the said second party [Hall] the following real estate, to wit. [Here follows a description of the farm of 120 acres, upon which, the policy recites, the insured buildings were located.] The agreed price for the said real estate is the sum of $4,100, which sum is to be paid as follows: $300 on the first day of November, 1895, and the remainder of $3,800 on the first day of March, 1896. And the said first parties do hereby agree and bind themselves to make and execute to the said second party a good and sufficient warranty deed to the said premises, and to furnish a good and sufficient abstract of title to the same, showing a good title to the said land; and to deliver the same to the said second party on full payment being made as above provided. And they agree that this contract shall stand as a bond for a deed for the said premises, and that the same shall be of full force and effect as such in law and equity. And it is further agreed and understood that time is of the essence of this contract in all particulars, and shall be so considered. It is further understood and agreed that the said second party shall have immediate possession of the stubble land on the said farm for the purpose of plowing the same; that he shall have possession of all of the pasture land except the stock pasture on the first day of November, 1895, and that he shall have possession of the stock pasture as soon as the corn is gathered, not sooner than the said first day of November, 1895; that he is to have possession of the house on the first day of December, 1895, and that he is to have possession of all the other buildings on the farm on the first day of November, 1895, except that the said first parties are to have the use of a crib for their corn for a longer period if they should need it. The said second party is to pay one dollar in addition to the price above named, and the farm bell on the place is to be left there. And it is especially understood and agreed that the said farm is to be kept in as good condition as it now is, unavoidable accidents excepted, and the same is to be delivered to the said second party as the same now is except above. It is further understood and agreed by the parties to this contract that each party shall secure to the other a forfeit of five hundred dollars for the faithful performance of this contract. And the said sum of five hundred dollars shall be considered as liquidated damages for the breach of this contract, by either party in favor of the other party. And as security from said first parties to the second party, it is understood and agreed that this bond shall stand for the securing of the same. And the said second party agrees to furnish good and sufficient security for the performance of this contract on his part.” While the first clause of this contract recites a present sale, it is manifest from a consideration of all of its terms that this was not the intent or purpose of the parties. The deed was to be executed in the future, and in the meantime it is expressly provided that the contract “shall stand as a bond for a deed.” While immediate possession is given to second party of the stubble land, the present possession of the buildings and remaining land was expressly retained by Pringle. Again, it is provided in the contract that the sum of $500 is fixed as liquidated damages, to be paid by either party upon his failure to perform his part of the agreement. Under the terms of this agreement, if the amount fixed was, as it is termed, liquidated damages, specific performance could not have been compelled by the second party, or so-called vendee. Pom. Spec. Perf. § 50. Neither title nor ownership can be said to have passed under this contract to Hall. It is a mere agreement for a future sale. Being such, it is not a breach of the condition quoted. Kempton v. Insurance Co., 62 Iowa, 83, 17 N. W. 194. Appellant relies upon Davidson v. Insurance Co., 71 Iowa, 532, 32 N. W. 514. That case was decided by a divided court. But, aside from this fact, we may say that it does not conflict with the rule announced in the Kempton Case. In the Davidson Case possession was given to the person who contracted to purchase, and the fact is allowed much force by the court. It is said, “Nothing remains to be done but for the party taking possession to make the payments.” And, speaking of the case of Kempton v. Insurance Co., with other cases, it is said: “But those cases all differ from the case at bar. In those cases something yet remained to be done by the vendor in addition to the execution of the deed.” In the case we have here, not only did it remain for Pringle to give possession of the insured premises, but no part of the purchase price had been paid at the time of the fire, and the contract contained a provision by which he might avoid his obligation to convey by paying the stipulated damages; for, in the absence of any extrinsic evidence tending to show a different intent, we feel compelled to accept this language of the contract as meaning...