Strasser v. Conklin

• Decision Date: 10 January 1882
• Citation: 11 N.W. 254,54 Wis. 102
• Parties: STRASSER v. CONKLIN.
• Court: Wisconsin Supreme Court

54 Wis. 102

11 N.W. 254

STRASSER

v.CONKLIN.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court, Outagamie county.

The facts in this case are substantially as follows: One Fisher sold and conveyed to one Craney two lots in the village of Seymour, on which was a hotel. Craney gave Fisher his promissory notes (presumably for purchase money) for $2,300, and executed to Fisher a mortgage on the lots to secure payment thereof. These securities are dated February 26, 1876. At the same time Fisher assigned to Craney two policies of insurance for $13,000, each on the personal property in such hotel, and the policies, in case of loss, were made payable to Fisher as his interest might appear. March 13, 1876, Fisher sold and transferred the notes and mortgage of Craney to the plaintiff. April 1, 1876, Craney and wife conveyed the mortgaged premises to the defendant. The consideration expressed in the deed is $4,000. It contains the covenants usual in a warranty deed, with the following limitation or exception to the covenants of seizin and against encumbrances, to-wit: “Except a mortgage thereon for the sum of $2,300, dated February 26, 1876.” At the same time Craney assigned to the defendant both of said policies of insurance. About June 1st one of the policies expired, and the defendant procured its renewal. Without the direction of the defendant the renewed policy also provided that the loss, if any, should be payable to Fisher as his interest may appear. The defendant paid Craney $1,700 on account of the purchase money, and it does not appear that he gave any note or written acknowledgement for the residue thereof. Soon after the transactions above stated the hotel building and some or all of the insured property was destroyed by fire. The loss was afterwards adjusted between the defendant and the insurers at $795.27, and drafts for that amount, payable to the defendant and Fisher, were forwarded to the agent of the insurance companies at Appleton. Fisher had ceased to have any interest in the insurance money, but plaintiff claimed the money by virtue of the assignment to him of the Craney mortgage. The defendant claimed that the money belonged to him absolutely, and refused to assign the policies to the plaintiff upon request of the latter. July 3, 1876, the plaintiff gave one Herman Erb, of Appleton, a power of attorney authorizing him to collect and receive the money on said policies. Erb thereupon assumed to act as the agent of the plaintiff in respect to his whole business with the defendant, and entered into an agreement with the latter on behalf of the plaintiff to the effect that the plaintiff should receive from the insurance agent $653.27 of the insurance money, and from the defendant a conveyance of the mortgaged premises in full payment and satisfaction of his claim against the defendant on the Craney mortgage. The plaintiff was soon after fully informed of what Erb had done in his behalf, and the terms of the settlement negotiated by him with the defendant. Having such information, the plaintiff received the above amount of insurance money from Erb, but, at the same time, denied his authority to make the settlement, and refused to accept the conveyance of the mortgaged premises which the defendant had duly executed and left with Erb. The plaintiff has not offered to return such insurance money to the defendant, but has applied it upon the Craney mortgage. This action was brought to recover the balance of the mortgage debt of $2,300, after deducting therefrom the insurance money received by the plaintiff. It is...