The First National Bank and Trust Co. v. The Mutual Fire Insurance Co. in Harford County
| Decision Date | 08 July 1932 |
| Court | Delaware Superior Court |
| Parties | THE FIRST NATIONAL BANK AND TRUST COMPANY, of Milford, Delaware, a corporation existing under the laws of the United States of America, Mortgagee, v. THE MUTUAL FIRE INSURANCE COMPANY IN HARFORD COUNTY, a corporation of the State of Maryland |
Superior Court for Sussex County, Summons Case, No. 6, April Term, 1932.
Case heard on demurrer to plea in abatement filed by the defendant company.
The declaration was on a fire insurance policy which had been issued by the defendant company to Roland F. Beauchamp and which contained paragraph "A" of the union standard mortgage clause. It was alleged that under this clause the defendant company, the insurer, had agreed that "Loss or damage, if any under this policy, shall be payable to First National Bank of Milford, Delaware, as mortgagee, * * * as interest may appear, and this insurance, as to the interest of the mortgagee * * * only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property. * * *"
In addition to setting out this clause of the policy, the declaration among other things in substance also alleged that at the time the policy of insurance sued on was issued to Beauchamp, he was the owner of all of the property covered by it and was indebted to the said the First National Bank and Trust Company of Milford, Delaware, in the sum of $ 8,000.00 secured by a mortgage on all of such property; that the policy in question was transferred by Beauchamp, the mortgagor, to the said the First National Bank and Trust Company, of Milford, Delaware, as collateral security for the payment of said mortgage debt, and that such assignment was approved by the defendant company; that the total value of the property insured by said policy was $ 7,975.00; that on March 31, 1931, some of the insured property was totally destroyed by fire and some of it partially destroyed, whereby Beauchamp, the insured, suffered a loss or damage in excess of $ 10,000.00; that due notice of the fire and loss was given the defendant company in accordance with the terms of the policy sued on and demand for payment was made, but the defendant company neglected or refused to comply with that request, to the damage of the said plaintiff, &c.
A plea in abatement to the declaration was filed by the defendant company. This plea, in substance alleged that another action had also been brought on the same policy by the First National Bank and Trust Company of Milford, Delaware, in the name of Beauchamp, the insured, for its use but for the recovery of the same debt; said action being No. 5 to the April Term, 1932, in the Superior Court for Sussex County.
The plaintiff, the Milford Bank, demurred to this plea on the ground that the declaration filed in the action referred to in it set forth a separate and distinct cause of action and that the plaintiffs in such actions were not identical.
At the argument it was conceded by the attorneys for the plaintiff however, that both suits were based on the same cause of action, but the further statement was made that both of such actions were brought in order that the court might determine whether, under paragraph "A" of the union standard mortgage clause, the Milford Bank could sue the defendant company on the policy in question, in its own name, or whether suit had to be brought in the name of Beauchamp, the insured, for its use. [1]
Plaintiff's demurrer to the defendant's plea in abatement is sustained.
Ruby B Vale, of the Philadelphia, Pa., Bar (John W. Dickerson, also of that Bar, on the brief), and James M. Tunnell for plaintiff.
William S. Potter (of Ward and Gray) for defendant.
OPINION
The plaintiff has demurred to the defendant's plea in abatement alleging that the declarations filed in the actions in question set forth separate and distinct causes of action, and that the parties plaintiff are not identical.
As already stated, the two suits, one for the use of the bank and the other directly by the...
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First Nat. Bank & Trust Co. v. Mut. Fire Ins. Co. in Harford County
... 162 A. 703 FIRST NAT. BANK & TRUST CO. v. MUTUAL FIRE INS. CO. IN HARFORD Superior Court of Delaware. Sussex. July 8, 1932. Action by the First National Bank & Trust Company, of Milford, Del., a corporation existing under the laws of the United States of America, against the Mutual Fire In......