99 Mo. App. 660 | Mo. Ct. App. | 1903
This is a proceeding by garnishment upon execution arising out of the following facts:
May 2, 1900, the appellant issued to Z. H. Baker a policy of insurance covering $1,400 on his dwelling house and $200 on household goods, for the period of one year. There was $600 additional concurrent insur - anee in another company. December 6, 1900, a fire occurred which destroyed the dwelling house and damaged the personal property. On December 14, 1900, the appellant’s adjuster went to Sheldon, where the property was situated, to adjust the loss; an agreement was reached between the insurance company and Baker fixing the amount to be paid by the insurance company
In compliance with this request Mr. Jones, the agent of the insurance company at Sheldon, wired the insurance company at Omaha to refuse payment of the draft and also on the same day wrote the insurance company a letter advising it of the mortgage and suggesting that the draft be dishonored. The draft was protested December 17,1900, and not paid. On December 18, 1900, the Brown Banking Company brought an attachment suit against Baker in the circuit court of Yernon county, Missouri, and on the same date caused the Farmers’ Bank of Sheldon to be garnisheed. That suit resulted in a judgment February 25, 1901, against Baker for $1,082.64 and costs. On February 27, 1901, execution was issued upon said judgment and on March' 2, 1901, process of garnishment was served upon the appellant.. After the first draft was protested Baker opened up negotiations with the agent of the insurance company at Sheldon (Mr. Jones), which resulted in an agreement on the part of Baker to accept $1,000 in full settlement of his claim against the appellant, and on ;
The evidence fails to disclose that there was any consideration for the new arrangement whereby Baker agreed to take $253.05 less than the amount originally agreed upon and for which he had accepted a draft and surrendered his policy; and there was no evidence that there arose any dispute as to the correctness of the first settlement of his loss as a basis for the new agreement.
On the trial the garnishee offered to show that it had made discoveries and received information which tended to invalidate the policy, and offered to show facts which would tend to prove that appellant4 ‘ did not owe defendant anything,” which offer was refused by the court.
The defendant contends that the transaction amounted to an accord and satisfaction. This position can not be sustained under the facts. There was no disagreement between defendant and the garnishee as to the original adjustment of the loss, and no question between them whatever as to its correctness. It is not disputed that had there been any mistake in said adjustment, or any dispute whatever as to its correctness, but what the subsequent settlement would have been valid. It is apparent, however, that when defendant was informed that plaintiff was a creditor and was claiming an interest in the property insured, it induced Baker
But appellant contends that the amount agreed upon in the original settlement was not liquidated damages. If anything could be, it was. See Bouvier’s Law Dictionary, and authorities there cited.
As there was no legal consideration for the subsequent agreement, it stands as if it had never been made. Under the authorities cited, Baker could sue and recover for the part of the liquidated damages unpaid, and it follows necessarily that plaintiff was entitled to recover.
Garnishee cites the case of Colonius v. Hibernia Fire Ins. Co., 3 Mo. App. 56, for authority for its contention that the original adjustment of Baker’s claim against it did not become liquidated so as to preclude the insurer from setting up any defense he might have on the policy. But no defense was set up in defendant’s pleading, save that the claim of Baker had been compromised and paid; which, as we have seen, it wholly failed to establish. It was not error of the court to reject the offer of defendant to prove facts invalidating the policy, because no such defense was pleaded.
There are no other questions worth consideration in the case. Cause affirmed.