Ruettell v. Greenwich Ins. Co.

• Decision Date: 13 November 1907
• Citation: 16 N.D. 546,113 N.W. 1029
• Parties: RUETTELL et al. v. GREENWICH INS. CO.
• Court: North Dakota Supreme Court

16 N.D. 546

113 N.W. 1029

RUETTELL et al.

v.GREENWICH INS. CO.

Supreme Court of North Dakota.

Nov. 13, 1907.

Syllabus by the Court.

The findings of the trial court in an action at law where a jury trial has been waived are presumptively correct, and will not be disturbed unless shown to be clearly against the preponderance of the evidence.

The mere organization of a corporation with a view of taking over the business and property of a copartnership does not of itself transfer the title of the partnership property to the corporation.

Evidence considered, and held not to show a transfer of the title to partnership property to a corporation formed for that purpose.

Appeal from District Court, Cass County; Chas. A. Pollock, Judge.

Action by Harry D. Ruettell and William C. Tubbs, partners under the name of Harry D. Ruettell & Co., against the Greenwich Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.Charles F. Templeton and Scott Rex, for appellant. R. M. Pollock, L. L. Twichell, and S. G. More, for respondents.

MORGAN, C. J.

Plaintiffs recovered a judgment against the defendant on a policy of insurance against loss by fire. A jury was waived, and the findings of fact are attacked as being against the preponderance of the evidence. A motion for a new trial was made on the sole ground that the findings of fact are not sustained by the evidence, and the motion was denied. The appeal, therefore, presents but one question-that of the sufficiency of the evidence to support the findings and to warrant a recovery.

The facts are substantially the following: The policy of insurance on which recovery is sought was issued on December 24, 1903. On this day the plaintiffs were a copartnership and the owners of the stock of goods covered by the policy. The stock of goods was destroyed by fire on August 1, 1904. It is a disputed question whether the plaintiffs were the owners of the stock of store goods on said August 1st. The appellants claim that the property was then owned by a corporation known as the “H. D. Ruettell Company,” to which was issued a certificate of incorporation by the Secretary of State of North Dakota on June 16, 1904. The copartnership was composed of Harry D. Ruettell and William C. Tubbs. These two persons and C. F. Ruettell executed the articles of incorporation on which a certificate of incorporation was issued on June 16th. The capital stock of the corporation was $50,000. Whether any stock was issued seems to be a matter of dispute, but that no stock had been delivered before the fire seems to be established, notwithstanding contradictory statements in the record. Policies issued prior to June 16, 1904, were issued in the name of the partnership. After that date, all policies were issued in the name of the corporation on the request of H. D. Ruettell, an officer of the corporation. In this case proofs of loss were waived, but proofs of loss under other policies were made by H. D. Ruettell, in which he stated under oath that the property destroyed was owned by the corporation. There is a conflict in the evidence arising, through contradictory statements of witnesses, whether a transfer of the assets and property of the copartnership had been made and delivered to the corporation when the fire occurred. The members of the partnership, Ruettell and Tubbs, make these contradictory statements in giving their evidence on this question. But, when asked as to such statements, they explained them, and each stated positively that no transfer, bill of sale, or change of ownership or possession had then been made. It was because of the organization of the corporation and assuming the corporate name, in contemplation of an immediate transfer, that the contradictory statements seem to have been made. One Mason, a disinterested witness, drew up the incorporation papers and other papers in connection with the change from a partnership, to a corporation, and all papers were left in his possession until some time in September....