Talley v. Brown
| Citation | 125 N.W. 248,146 Iowa 360 |
| Parties | O. B. TALLY, Treasurer of Woodbury County, v. JONATHAN W. BROWN, Appellant |
| Decision Date | 12 March 1910 |
| Court | United States State Supreme Court of Iowa |
Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.
APPEAL from judgment confirming an assessment of omitted property by the county treasurer.
Affirmed.
Edwin J. Stason, for appellant.
Strong & Whitney, for appellee.
OPINION
A building on land of defendant was destroyed by fire December 23, 1904. It was insured in several companies, but the loss was not adjusted until January 5, 1905, when these companies and the insured agreed that he was entitled to the payment on the several policies of $ 25,250 in the aggregate within sixty days. Each of these policies contained the following paragraph:
This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deductions for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; and such ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided, and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described. . . . No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, until after full compliance by the insured with the foregoing requirements, nor unless commenced within twelve months after the fire.
On January 1st then the validity of defendant's claims against the several companies depended on (1) whether there had been any breach in the conditions of the policies on the part of the assured; and (2) upon the making of necessary proofs of loss. And payment was contingent upon the exercise of the option to rebuild, and, in event this was not exercised, the extent of the damages for which they were liable was yet to be determined. Were these contingencies such as to relieve the claims for loss from assessment as property of the insured? The assessor omitted the claims, and the county treasurer assessed them as omitted property.
Under the laws of this state, personal property is "listed and assessed each year in the name of the owner thereof on the first day of January." In re Estate of Kauffman, 104 Iowa 639, 74 N.W. 8. Section 1308, Code. "The term credit, as used in this chapter, includes every claim or demand due or to become due for money, labor or other valuable thing . . . and all money or property of any kind secured by deed or . . . otherwise." Section 1309, Code. "Accounts, contracts for cash or labor . . . choses in action . . . shall be assessed as provided in this chapter." Section 1310, Code. These in connection with other sections of the Code manifest the legislative purpose of taxing all property, not expressly excepted as exempt, and, in construing them, this design is not to be ignored. On the other hand, if the language quoted does not fairly include the claims on the policies as they existed January 1, 1905, this manifest intent of the lawmakers can not supply the omission of the language sufficiently comprehensive to include them. To be assessable, the liabilities on the policies must be construed to be "a claim or demand due or to become due for money, labor or other valuable thing," or "property or labor due from solvent debtors on contract" or "contracts for cash" or "choses in action." The word "due" as here employed does not have reference to the time of payment or the fulfillment of an obligation, but is synonymous with "owing." See Jasper v. District Township Sheridan, 47 Iowa 183; Barto v. Stewart, 21 Wash. 605 (59 P. 480); United States v. Bank of N. C., 31 U.S. 29 (8 L.Ed. 308).
Were these policies claims or demands in the hands of defendant? The words "debt" and "demand" are of kindred meaning, but "demand" is of more comprehensive signification than "debt." The term "debt" imports a sum of money owing upon a contract, express or implied, while "demand" embraces rightful claims whether founded on a contract, a tort, or a superior right to property. United States Rolling Stock Co. v. Clark, 95 Ala. 322 (10 So. 917). "Demand" is regarded as a word of wider signification than any other except "claim." Vedder v. Vedder, 1 Denio (N. Y.) 257, 261. Judge Story defined a "claim" in Prigg v. Pennsylvania, 41 U.S. 539, 16 Pet. 539 (10 L.Ed. 1060), as "in a judicial sense a demand of some matter as of right by one person upon another to do or to forbear to do some act or thing as a matter of duty." See cases collected in 2 Words and Phrases, 1202, 1973. In Webster's Dictionary "claim" is defined as "a demand of a right, a calling on another for something due or supposed to be due." Without pursuing the inquiry further, it will be perceived that these policies, after the fire, came within the ordinary definition of claims, and there can be no doubt but that the Legislature employed the word in its most comprehensive sense. But it is objected, even if claims, they were contingent, and not perfected on January 1st, and therefore could not properly have been assessed. True, the proofs of loss had not been furnished. But the statute includes claims "due or to become due." If these were within the class to "become due," it would be immaterial whether this were because of the policy postponing the obligation to pay six days or owing to the necessity of serving proofs of loss. "If the claim had been merely one which would be due in sixty days, it comes within the definition of credits which embraces claims to become due as well as claims 'due,' and it would equally come within the definition if it was not yet due because the 'proofs' had not been made." Cooper v. Board of Review, 207 Ill. 472 (69 N.E. 878, 64 L. R. A. 72).
Again, it is said that the amount of damages had not been ascertained. The value of claims must necessarily be estimated by the assessor; and that there were difficulties in the way will not obviate the requirement that there be an assessment. Moreover, in estimating the value on January 1st, the assessor is not limited to conditions then known, but may use such information bearing thereon as may be available at the time the work of assessing is done. The value of the claims January 1st had become definitely known at that time. It is contended, however, that, as the insurance companies had the option to rebuild, the claims were purely contingent, and therefore not subject to taxation. Authorities holding that when in that situation insurers are not subject to garnishment are cited. See Hurst v. Dowling Ins. Co., 81 Ala. 171 (1 So. 209); Dowling v. Lancashire Ins. Co., 89 Wis. 96 (61 N.W. 76); Martz v. Insurance Co., 28 Mich. 201; 20 Cyc. 997. But these decisions proceed upon the theory that there must be a definite or absolute money liability in order to warrant holding the garnishee. An election to rebuild necessarily would relieve the company from liability as garnishee, but it would not destroy the character of the policy as constituting a claim. Conceding that, in event of electing to rebuild, the companies would cease to be insurers and become parties to a contract by which they agree to erect for the insured a building substantially like that destroyed (Beals v. Insurance Co., 36 N.Y. 522), it is still "property due on contract" under section 1308 of the Code or "a claim due or to become due for money, labor or other valuable thing" under section 1309. In other words, the policies in connection with the loss constituted claims for money in compensation for damages for which indemnity had been contracted by payment of money or by the restoration of property destroyed, and, in either event, are included within the language of the assessment statutes. Should the insurers elect to rebuild, the building would not be included in the valuation of the realty for that year, and the claim of the insured would be for property and labor in the improvement of his land, and plainly within the terms of the statute quoted. To authorize the assessment of the policies as credits, it was not essential that the assessor know whether the claims were for money or might turn out to be for property, for in either event they would be assessable as credits, though these matters would have an important bearing in estimating the value of such claims. We are of opinion that the claims for loss under the policies were subject to taxation.
The assessor, with full knowledge of the facts, concluded that the claims were not assessable, and notified defendant that he need not list them. Appellant contends that, in the absence of fraud or bad faith, this was...
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