Tripp v. Jordan
| Decision Date | 16 February 1914 |
| Citation | 164 S.W. 158,177 Mo.App. 339 |
| Parties | DAVID TRIPP, Appellant, v. IRWIN JORDAN, A. M. BAIN, FREDERICK L. CHESNEY and MUTUAL LIFE INSURANCE COMPANY, OF NEW YORK, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
J. H McVay and T. A. Witten for appellant.
Defendant Jordan, acquired no interest whatever in the policy by virtue of the assignment executed to him by Tripp. (1) Because the assignment was procured by fraud and Tripp received nothing whatever for it. (2) Because it was void in law for the reason that Jordan had no insurable interest in the life of Tripp, and the assignment was not made to secure a debt due from Tripp to Jordan. It was therefore against public policy and wholly void. Heusner v. Mutual Life Ins. Co., 47 Mo.App. 343; Mutual Life Ins. Co. v. Richardson, 99 Mo.App. 93; Bruer v. Life Ins. Co., 100 Mo.App. 540; Stokes v. Meyer Bros. Drug Co., 101 Mo.App. 627; Jenkins v. Morrow, 131 Mo.App. 288; Deal v Hainley, 135 Mo.App. 507. Defendant, Bain, acquired no right in the policy as an innocent purchaser for value, without notice. Heusner v. Mutual Life Ins. Co., 47 Mo.App. 343; Locke v. Bowman, 168 Mo.App. 121.
Hadley, Cooper, Neel & Wilson for respondents, Bain and Chesney.
(1) A life insurance policy is assignable and the assignment thereof is valid. McFarland v. Creath, 35 Mo.App. 112, 122; Heusner v. Mutual L. & Co., 47 Mo.App. 343; Baker Trustee v. Young, 47 Mo. 453, 456. (2) Even though the assignee have no insurable interest in the life of the insured an assignment of a life insurance policy to such an assignee is not void if there is no wagering feature in the assignment nor benefit to the assignee by the death of the insured. McFarland v. Creath, 35 Mo.App. 112. If one or two innocent parties must suffer for the wrongful act of another, the one who puts the party in the position to do a wrong must suffer. Hayner v. Crow, 79 Mo. 293, 296; Neuholft v. O'Reilly, 93 Mo. 149.
Action in equity to cancel assignments of a life insurance policy issued November 11, 1891, by defendant insurance company to plaintiff and payable to his wife in the event of his death. In 1907, plaintiff and his wife were divorced and in a settlement of property rights she assigned her interest as beneficiary to him. The policy known as a "Limited Payment Twenty Year Distribution Policy" required the payment of premiums for twenty years and was fully paid at the time of the transactions in controversy which occurred in October, 1911. Twenty years after the date of the policy (November 11, 1911), plaintiff, by its terms, became entitled to surrender it to the company and receive $ 1289 as its full cash value.
In answer to a newspaper advertisement plaintiff called on defendant Jordan and the interview ended in an agreement for them to become partners in the business of raising poultry. Jordan was not acting in good faith but made false and fraudulent representations for the purpose of defrauding plaintiff. When he learned that plaintiff had no ready money but owned a policy that could be converted into cash in a month and had an ascertained value of $ 1289, he offered to buy the policy for that sum and to pay the purchase price by applying $ 800 to the payment of plaintiff's contribution to the capital of the partnership and paying the remainder of $ 489 to plaintiff in money. The offer was accepted by plaintiff and on October 9, 1911, he delivered the policy to Jordan and executed and acknowledged a written assignment thereof to him. A plausible excuse enabled Jordan to procure the consent of plaintiff to wait a week for his cash payment of $ 489. Jordan employed this period of grace in a successful effort to effect a resale of the policy. In a way not now important, he was brought into negotiations with defendant Bain who had money and was willing to buy the policy at a profitable discount provided everything was found to be all right. He examined the policy and the assignment from plaintiff and consulted the agent of the insurance company. Convinced by these sources of information that the policy could be converted into $ 1289 on November 11th, following, and being advised that a regularly executed assignment of it for a valuable consideration would be valid, he agreed to buy it at the price of $ 1249, provided that Jordan would have plaintiff "come and participate in the transaction." Jordan explained that the personal participation of plaintiff was inconvenient but that an affidavit could be procured from him to the effect that when he sold and assigned the policy he had a good title thereto free and clear of all claims or encumbrances, that no prior assignment had been made, that he was not a bankrupt and that he had a "good right and full power to assign said policy as above set forth. " Bain said he would be satisfied with such affidavit and Jordan telephoned plaintiff to come to his office. Plaintiff complied with the summons and was informed by Jordan that his lawyer had found some flaw in the assignment and had prepared another for plaintiff to execute. Plaintiff could not read without his glasses and had none with him but on being assured that the paper handed him was practically the same as the assignment, he signed it and swore to it before a notary public. The paper was an affidavit Jordan prepared in compliance with Bain's requirement. Assured by Jordan that a check for $ 489 would be sent him the following day, plaintiff departed. Afterward Jordan delivered the policy and affidavit together with a written assignment executed by himself to Bain who paid Jordan $ 1249 in full of the agreed purchase price. Failing to receive the promised remittance, plaintiff again went to Jordan's office, found it vacant and on investigating learned that Jordan had decamped with the proceeds of the policy. He brought this suit including Jordan, Bain and the insurance company as defendants, to set aside the assignment from himself to Jordan and from Jordan to Bain and for an injunction to restrain the insurance company "from paying said money to said Bain or to any person to whom the said Bain may assign or pretend to assign said policy."
The charge in the petition is that Jordan and Bain conspired to defraud plaintiff. After hearing the evidence the court rendered a judgment based on the finding that Jordan had defrauded plaintiff but...
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