Thorne v. Etna Ins. Co. of Hartford

• Decision Date: 04 April 1899
• Citation: 102 Wis. 593,78 N.W. 920
• Parties: THORNE v. ETNA INS. CO. OF HARTFORD.
• Court: Wisconsin Supreme Court

102 Wis. 593

78 N.W. 920

THORNE

v.ETNA INS. CO. OF HARTFORD.

Supreme Court of Wisconsin.

April 4, 1899.

Appeal from circuit court, Waupaca county; Charles M. Webb, Judge.

Action by Sarah E. Thorne against the Etna Insurance Company of Hartford, Conn. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action upon a fire insurance policy of $1,000 upon the plaintiff's stock of millinery, situated at Clintonville, Waupaca county, Wis., which was partially destroyed by fire March 21, 1895. The defense was that a chattel mortgage upon the property was executed November 23, 1894, during the life of the policy, and in violation of one of the provisions of the policy, by which the policy was avoided if the property insured was chattel-mortgaged. In addition to this defense, it was claimed by the defendant that the plaintiff's damage did not exceed two or three hundred dollars. On the trial it appeared that the policy was issued June 21, 1894; that in November, 1894, the plaintiff was indebted to J. E. Jenner & Co. to an amount of more than $500; and that the claim was put in the hands of Mr. Guernsey, an attorney at Clintonville, who commenced suit upon the claim November 1, 1894. No defense was put in, and on the 21st or 22d of November Guernsey made affidavit of no answer, and mailed all the papers to the clerk of the court, at Waupaca, the county seat, some 50 or 60 miles distant, for the entry of judgment by default. On the 23d of November, 1894, Mrs. Thorne gave a note and mortgage upon the stock in question, payable to Jenner & Co., for the amount of their claim; but it was claimed that this mortgage was given under an agreement that, if judgment had already been entered by the clerk prior to the execution of the mortgage, the mortgage should be of no effect. A special verdict was rendered in the case as follows: “(1) Did the plaintiff on the 23d day of November, 1894, execute written instruments, purporting on their face to be a note and chattel mortgage to J. E. Jenner & Co. for the sum of five hundred sixty-one dollars and ninety-five cents ($561.95); said mortgage, on its face, purporting to incumber her stock of millinery goods mentioned and described in the policy of insurance issued by the defendant to the plaintiff, upon which this action was commenced? Ans. by the Court. Yes. (2) Were the said note and chattel mortgage executed and delivered to F. M. Guernsey, agent of J. E. Jenner & Co., upon an agreement with the plaintiff, Mrs. Thorne, that such note and mortgage should be void and of no effect in case judgment had been previously entered in the action of J. E. Jenner & Co. against her (Mrs. Thorne)? Ans. Yes. (3) Did the plaintiff deliver the said note and mortgage to the said agent, Guernsey, for the purpose of creating a lien upon her said stock of goods, without reference to the time when said judgment should be docketed? Ans. No. (4) Was the plaintiff, at the time she executed the note and mortgage, indebted to J. E. Jenner & Co., for goods sold her, with interest and costs, in the sum of five hundred sixty-one dollars and ninety-five cents ($561.95), or thereabouts? Ans. by the Court. Yes. (5) Was the plaintiff at the time of the fire indebted to the firm of J. E. Jenner & Co. in an amount of four hundred sixty dollars ($460), or thereabouts? Ans. by the Court. Yes. (6) Did the defendant, the Etna Insurance Company of Hartford, Conn., or any of its agents or officers, have knowledge that the property insured had been incumbered by said chattel mortgage until after the fire and loss? Ans. by the Court. No. (7) Did F. M. Guernsey, agent, know at the time the chattel mortgage was made and executed by the plaintiff, Mrs. Thorne, that judgment had been entered against Mrs. Thorne by the clerk of the Waupaca county circuit court? Ans. by the Court. No. (8) Was any consent or agreement indorsed in writing upon, or attached to, the policy of insurance, that the property insured could be incumbered by a...