Winfrey v. The Galena Automobile Company
| Decision Date | 07 April 1923 |
| Docket Number | 24,400 |
| Citation | 113 Kan. 343,214 P. 781 |
| Parties | C. C. WINFREY, Appellee, v. THE GALENA AUTOMOBILE COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1923.
Appeal from Cherokee district court; FRANK W. BOSS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. SALE OF AUTOMOBILE--Agreement to Transfer Insurance Policy--Breach of Agreement--No Estoppel to Recover Damages. Where a seller of a car agrees to transfer a theft policy of insurance on it and thus furnish insurance to the purchaser for a period which was not done at the time of the sale, but which the seller thereafter promised would be done, and the purchaser relied on the continued promises of the seller, the purchaser is not barred from a recovery for the loss of the car by theft because he did not at once assume that the agreement had been repudiated and procure other insurance in order to mitigate the damages, but relied on the continued assurances of performance by the seller.
2. SAME--Refused Instructions. Instructions on the subject which were not given, examined, and held to have been properly refused.
3. SAME--Effect of Subsequent Promises to Transfer Insurance Policy. If an agreement has been technically broken and the defaulting party to it makes promises from time to time that he will fulfill the agreement which leads the other party to believe that it will soon be fulfilled, the latter will not be barred from a recovery of damages although relying on the promises he may have taken no steps to prevent loss.
4. SAME -- Executory Agreement -- Prevention by Unforseen Contingencies. Where one agrees to perform an act possible in itself he will be liable for a breach thereof although contingencies not forseen by him arise which make it difficult or even beyond his power to perform and which might have been provided against in the agreement.
5. TRIAL--Refusal to Submit Requested Interrogatories. A refusal to submit special interrogatories as to matters of evidence, and not the ultimate facts in the case, and which would not have affected the result of the action, is not error.
6. SAME--Instructions. Instructions given and the refusal of those requested, as well as rulings on the admission of evidence, examined, and held to be without error.
S. C. Westcott, of Galena, for the appellant.
E. B. Morgan, of Galena, Charles Stephens, and F. E. Dresia, both of Columbus, for the appellee.
This action was brought by C. C. Winfrey against the Galena Automobile Company to recover damages for the failure of the defendant to assign an insurance policy. The plaintiff recovered, and the defendant appeals.
On August 18, 1921, the plaintiff purchased a Ford car from the defendant for $ 312.50 and the agreement of sale included among other things an assignment of an insurance policy that had been previously taken out on the car. It appears that the car had been first sold to one Flynn, and at that time the defendant procured insurance to be taken out in the name of Flynn with a clause in it that the insurance was payable to the defendant as its interests might appear. Shortly after the sale the plaintiff asked for the transfer of the insurance, and according to his testimony the defendant said that the matter had slipped his mind but that he would attend to it. About a week later he asked for the insurance, but was told by the manager of the defendant that he had neglected it, but to come back in a few days and that he would bring the policy down and attend to the transfer. It was testified that other calls were made, one with the same result, one as late as September 20, when the manager was absent from his place of business. The car was stolen from the plaintiff on September 27, 1921, and the following day notice of the theft was given to the defendant and according to the testimony the manager acknowledged that he had agreed to transfer the insurance as plaintiff claimed but at a later time the defendant denied that such an agreement was made and also any liability for the loss sustained.
The objections urged on the appeal are that instructions requested were improperly refused. One was, in effect, that if the agreement to transfer the theft insurance was made and the defendant had breached the contract it was the duty of plaintiff to use diligence in obtaining other insurance, and that if he failed to do so it would not be diligence on the part of the plaintiff and he was not entitled to recover in the action. The court, in an instruction given, covered the rule, saying in effect that if the defendant refused to comply with...
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City of Montpelier v. Nat'l, 448.
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