Queen Ins. Co. of Liverpool, England, v. Kline

• Decision Date: 02 October 1895
• Citation: 32 S.W. 214
• Parties: QUEEN INS. CO. OF LIVERPOOL, ENGLAND, v. KLINE et al.
• Court: Kentucky Court of Appeals

32 S.W. 214

QUEEN INS. CO. OF LIVERPOOL, ENGLAND, v. KLINE et al.

Court of Appeals of Kentucky.

October 2, 1895

Appeal from court of common pleas, Jefferson county.

"Not to be officially reported."

Action by G. Kline & Sons against the Queen Insurance Company of Liverpool, England, on a fire policy. From a judgment for plaintiffs on a second trial, the order granting plaintiff such trial, and one denying it a new trial, defendant appeals. Affirmed.

Humphrey & Davie, for appellant.

P. B. &amp Upton W. Muir, for appellees.

GUFFY J.

It appears from this record that Mrs. H. B. McDonald was the owner of a lot or parcel of land in Pewee Valley, Ky. and in 1890 determined to have an extensive frame dwelling house built upon said lot, but, not having sufficient money to pay the cost of the building, mortgaged it to appellee, in order to get aid in way of building material, etc. It is also claimed that some time prior to the 24th of November, 1890 the husband of Mrs. McDonald, and J. M. Armstrong, a citizen of Pewee Valley and agent or solicitor of the appellant, had some conversation respecting the insurance of the building. It appears that they jointly agreed as to the amount of insurance and the time, and Armstrong made some kind of memorandum, and soon afterwards presented to the husband a policy of insurance on the building for $2,000 for one year in favor of Mrs. McDonald. It is claimed that the husband noticed a statement in or attached to the policy, stating that 30 days was given the assured to complete the building and that Mr. McDonald objected to that, saying, in substance that it would take several months to complete the building and that Armstrong replied that he could have all the time he wanted, that the 30-days statement was put in because some time had to be named, and that it was matter of form; therefore the policy was accepted, and premium paid. The house was never completed, and on the 22d of February, 1891, was entirely consumed by fire. This suit was brought to recover the $2,000, the policy having, by the consent of appellant, been assigned to appellee Kline. Appellant resisted a recovery on the ground that the building was not completed in 30 days, and because of work being done for 15 days at a time on it, and it being unoccupied for more than 10 days, and because of the mortgage, insisting that each of them worked a forfeiture of the policy, as the policy so provided. On...