Benesh v. Mill Owners Mutual Fire Insurance, 103 Iowa 465

Benesh v. Mill Owners Mutual Fire Insurance

103 Iowa 465 | Iowa | 1897

Deemek, J.

1 McClain’s Code, section 3789, is as follows: “Insurance companies may be sued in any county in which is kept their principal place of business, in which was made the contract of insurance, or in which the loss insured against occurred.” Appellant argues that this section do es not apply to suits to reform policies of insurance; that it ■has reference to actions which are primarily upon the contract of insurance. If it be conceded that this be a proper construction, yet it does not follow that plaintiff’s motion to transfer should have been sustained. The suit was upon a policy of insurance, and as an incident to this relief thle court was asked to declare the terms of the contract. The ultimate relief sought was recovery for the loss insured against, and the suit was properly brought in the county where the loss occurred.

2 II. The policy was issued to Adam Bruner and John Stransky. Bruner died after the fire occurred, and plaintiff Beckley is the administrator of his estate. After the loss, Stransky assigned to plaintiff Benesh all his interest in the policy. By the terms of the policy, loss, if any, was¡ made payable to John Beal and A. Bruner, as their interest might appear. These parties assigned their interests in the policy to the plaintiffs. None of these assignors were made parties to the suit. Appellant contends that these persons should have been made parties, for thareformation cannot be had in a suit by an assignee of a written contract unless the assignors are made parties. The policy was made payable to Beal to secure the payment of certain obligations he had indorsed for Bruner and Stransky. When he made the assignment, he *468acknowledged complete satisfaction of his. liability on these obligations, and released the insured of all his claims to any part of the money due on the policy. Surely, he was not a necessary party to the suit. Stransky, who was one of the insured, assigned all his right, title, and interest in the policy to Benesh, and transferred to him all claims and demands of every kind and nature existing'in his- favor by reason of the policy of insurance, and authorized Benesh to demand, and in his own name sue for, the amount due. The reformation asked for was in the description, of the property. The policy located the building upon the west half of the northwest quarter of section 14, whereas, in truth and in fact, it was situate upon the west half of the northwest quarter of section 28. These plaintiffs were the real parties in interest, and had the right to sue upon the policy. We can see no reason for making Stransky a party, as he had sold all his claim and demand of -every kind or nature existing in his favor under the policy of insurance. It is a general rule that the assignment of a debt carries with it every remedy and security for such debt available by the assignor as an incident thereto. See cases cited in 2 Am. & Ehg. Enc. Law (2d ed.) p. 1084. The case of Durham v. Bischof, 47 Ind. 211, relied upon by appellant, is not in ■point. There an attempt was made to defeat liability on a contract in an action brought by the beneficiaries thereof, without making the real persons in interest parties to the litigation. It is not a case relating to rights of assignors, as the one at bar.

*4693 *468III. The evidence clearly shows a mistake in the description of the premises, which mistake was mutual, and should be corrected, unless it appears, as contended by appellant, that it did not issue the policy, and is not bound by it. The defendant is now doing business under and pursuant to articles of incorporation adopted; *469and recorded in January, 1889, after the policy in suit was issued. It appears, however, that at the time the policy was issued a corporation bearing the same name as the defendant was doing business in this state, having its principal place of business at Des Moines. On account of an- adverse decision, see Day v. Insurance Co., 75 Iowa, 694, it concluded to re-incorporate. The records show that at the January, 1889, meeting of the policy holders, a resolution to re-incorporate was unanimously carried, and the articles under which the corporation- is now acting were adopted. The officers remained the same, at least until the following March; the membership remained practically the same, and no one was dropped except at his request. The insured, under the policy in suit, were treated as members, and paid dues and assessments to the re-organized company as to the old. The premium notes and assets of the old company were transferred to the new, and by resolution it was determined that the old policies should be continued in force until new ones were issued, and that, if the policy holders, after notice of the change, did not elect to take new policies, the old should continue. We have no doubt that the companies remained substantially the same, and that what was done was simply a re-incorporation to- meet some of the defects in the original articles and amendments thereto. In any event, the defendant, under its own showing, is responsible to the same -extent as if it had issued the policy in suit.

Other questions, with reference to the condition of the record, need not be considered. The trial court was right in reforming the policy and giving plaintiffs j udgm ent. — Affirmed.