The Home Insurance Company of New York v. McRichards

• Decision Date: 21 November 1889
• Docket Number: 13,936
• Parties: The Home Insurance Company of New York v. McRichards
• Court: Indiana Supreme Court

22 N.E. 875

121 Ind. 121

The Home Insurance Company of New York v. McRichards

No. 13,936

Supreme Court of Indiana

November 21, 1889

From the Washington Circuit Court.

Judgment reversed, at costs of appellee.

B Harrison, W. H. H. Miller and J. B. Elam, for appellant.

J. A Zaring and M. B. Hottel, for appellee.

OPINION

Olds J.

This is an action upon an insurance policy given for $ 1,000. The complaint is in the usual form, and no question is presented as to its validity. The defendant answered in three paragraphs, the first a denial. The second sets up breach of warranty. The third pleaded that the plaintiff had warranted in her application that she was the sole owner of the property, and that it was free from encumbrances, and alleged that there was a breach of such warranties, and that after the property was destroyed by fire the liability of the defendant was disputed, and that a compromise had been agreed upon between the plaintiff and defendant and a settlement agreed upon by which the defendant was to pay the plaintiff $ 500 in full satisfaction of said policy, and the defendant had paid said sum and the plaintiff had accepted the same and receipted the company in full and surrendered the policy. The plaintiff replied to the answer by denial.

It clearly appears from the evidence that such settlement was had and the money paid by defendant and accepted by the plaintiff in full of the amount due. The court charged the jury, on this issue, in the tenth instruction, as follows:

"10th. It is for you to determine the issue from all the evidence in the case. The burden of proof is upon the defendant, and before it can sustain the issue it must prove the allegations of this paragraph of the answer by a fair preponderance of the evidence. The receipt given may be explained by parol evidence, and all the facts going to establish or tending to prove the compromise or settlement can be shown by parol testimony, notwithstanding the receipt executed by the plaintiff. You should determine the issue from all the facts circumstances and evidence in the case, and if you find that settlement or compromise was full and fair in all its parts, was made in good faith, and was entered into by plaintiff with a full knowledge of the facts, and she was not deceived or misled thereto by any act or representation of defendant's agents, then you should find upon this issue for defendant. But if the settlement...