Smith v. Commonwealth Insurance Company
| Decision Date | 11 May 1880 |
| Citation | 5 N.W. 804,49 Wis. 322 |
| Parties | SMITH v. THE COMMONWEALTH INSURANCE COMPANY |
| Court | Wisconsin Supreme Court |
Argued April 22, 1880
APPEAL from the County Court of Milwaukee County.
One Octavius Marshall, by Carpenter & Smiths, his attorneys obtained a judgment against a corporation or firm in Milwaukee known as the Marshall Brothers' Church Organ Manufacturing Company. The amount of the judgment was made up of the demands of several persons against the company, which for convenience, had theretofore been assigned to Octavius Marshall. The assignments were for the purpose of having one action brought on all the claims, and were made without consideration. Although absolute in form, there seems to have been an understanding between the parties interested that the proceeds of the judgment should be paid to the several assignees in proportion to the original claim of each. The judgment was sued upon in Chicago, and an organ which the company, the judgment debtor, had there, was seized on attachment. That action was prosecuted to judgment, and the organ sold on execution. The present plaintiff bid it in for $ 1,500, and a certificate of sale was issued to him. He paid nothing on his purchase, however, and recognizes the right of all parties interested in the judgment to have shared in the proceeds, had the organ been subsequently sold. It may be stated here that the plaintiff and one of his copartners jointly, also had an interest in the judgment.
By mutual agreement between all of the parties in interest, the organ was shipped to Milwaukee for the purpose of being enlarged by the company, preparatory to a sale of it; and by like agreement insurance in four companies (the defendant being one of them), in the sum of $ 1,000 in each, was obtained upon it in the name of the plaintiff. When the enlargement of the organ was nearly completed, and a contract for the sale thereof had been made, it was accidentally destroyed by fire. This action is upon the policy issued by the defendant company. The evidence given on the trial tends to prove that the agents of the defendant, through whom the insurance was effected, were fully informed that several persons were interested in the organ in the manner above stated; that all of their negotiations on the subject were with persons, other than the plaintiff, who had such interest; and that the agents were referred to the plaintiff for more definite information on the subject, but did not apply to him therefor. The premium was paid by one Caswell, a party interested, and the plaintiff had no agency in obtaining the insurance, beyond requesting that the policies be made to him.
It also appeared that the plaintiff furnished proofs of loss, which were objected to by the defendant for certain alleged defects therein. These defects were afterwards supplied by the plaintiff, with a single exception. The plaintiff scheduled the insured property as "an organ." The defendant, by its general agent, persistently demanded a further schedule, and the plaintiff as persistently protested that the property was a single thing, and that he did not know how it could be scheduled in any other manner. The plaintiff recovered judgment for the amount of the policy, with interest; and the defendant appealed from such judgment.
Judgment affirmed.
For the appellant there was a brief by Cottrill, Cary & Hanson, and oral argument by Mr. Cottrill.
For the respondent there was a brief by Carpenter & Smiths, and oral argument by Winfield Smith.
Numerous exceptions were taken on the trial on behalf of the defendant, and have been argued in this court. These have all been duly considered, but it is only necessary to discuss a few of them.
1. The answer contains a defense to the effect that proper proofs of loss have not yet been furnished, and hence that this action cannot be maintained. This, it is claimed, is a plea in abatement which should have been first tried under the decision of this court in The Supervisors v. Van Stralen, 45 Wis., 675. The court below denied the motion of counsel for defendant for a separate trial of that issue, made at the commencement of the trial. There might be force in the position if the defense referred to were purely a plea in abatement. The point of the defense is, that the policy contained a condition that "if the interest of the assured in the property be any other than the entire,...
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