85 Iowa 652 | Iowa | 1892
The district court found the following facts and conclusions:
uFirst. On the twenty-first of November, 1883, the defendant issued to J. P. Creager its policy insuring said Creager against loss or damage by fire for the period of one year on property and in amounts as follows: One thousand, five hundred dollars on his general stock of merchandise, consisting of dry goods, millinery, notions, ready-made clothing, hats and caps, boots and shoes, groceries and provisions, queensware,. glassware, crockery and such other merchandise, not more hazardous, as is generally kept in a general notion store; and six hundred dollars on his store furniture and fixtures, consisting of counters, shelving, show cases, fire-proof safe, and all other usual store furniture and fixtures, — all contained in the one-story brick store building situated on lots 1 and 2, in block 21, Logan, Iowa, subdivision of said lots C. and D.
“ Second. The building in which the insured property was contained had been erected by said Creager prior to the issuance of said policy, for his use as a*654 general store. The shelving therein (being a part of the property insured) rested upon the floor, and was nailed thereto, and was also nailed to wooden strips imbedded in the walls for that purpose, and was placed in the building by Creager for use therein in connection with the building as a store-room, although such shelving could be removed without injury to the building, other than the drawing out of the nails which held it in place. The building was a brick structure, permanent, and a part of the realty.
“Third. At the time the insurance in question was written the realty was incumbered by a mortgage to •one Charles L. Mark, executed by Creager. The agent of the defendant, who took the application and issued the policy, was informed by Creager at the time of taking the application, and knew, of the existence of this mortgage. Both he and Creager supposed it did not cover any part of the property insured, and for this ■reason no mention was made of it in the application.
“Fourth. On the eleventh day of January, 1884, ■one Gr. B. Seekell filed in the office of the clerk of the district court of Harrison county a mechanic’s lien upon real estate, of which the building containing the insured property was a part, to secure a claim of five hundred and sixty dollars and eighty-five cents for lumber furnished by him to said Creager for the construction of said building and the counters and shelving therein. This claim was unsatisfied at the time of the loss of the property insured.
“Fifth. On the twenty-ninth day of February, 1884, said Creager and wife conveyed the real estate, of which the building containing the insured property was a part, by deed absolute on its face, to one P. Cadwell, and took back an instrument in writing showing that ■said deed was executed to said Cadwell, and deposited as collateral security for payment of the debt of two .thousand, seven hundred dollars which Creager owed*655 to ‘Cadwell’s bank;’ said instruments being parts of one and the same transaction, and together constituted a mortgage of Creager to secure said debt. This incumbrance was unsatisfied at the time of the loss of the property insured.
uSixth. At the time when the insurance in question was written, the value of the property owned by Creager and covered by such insurance was greater than the total amount of insurance written thereon.
“Seventh. The property insured was totally destroyed by fire on the eighth of August, 1884, and on the same day, and after the loss, the policy of insurance in suit, and all claims under it, were duly assigned by ¡said Creager to A. J. Crittenden, the plaintiff; herein.
“Eighth. After the insurance in question was written, and before the loss of the property insured, some negotiations were had between Creager, the assured, and one A. K. Grow, looking to the formation of a partnership between them in the mercantile business then being carried on by Creager. But no copartnership agreement was ever consummated between them, and ■said Grow never in fact acquired any interest in any part of the property insured.
“Ninth. On the sixteenth day of August, 1884, •said Creager, the assured, signed and delivered to the agent of the defendant, who was authorized to receive ■the same, written proofs of loss, which are in evidence in this cause. These proofs were made up by said agent of the defendant with the assistance of Creager. Said agent was informed and had knowledge, at the time when said proofs were made, of the existence of the Mark mortgage, and of the deed to Cadwell, and ■of the assignment of the policy to Crittenden. There was no fraud or concealment-, nor any attempt at fraud -or concealment, on the part of said Creager, in making -of said proofs. The said proofs of loss were incorrect .in the following particulars: First. They represented*656 that the insured property was free from any incum-brance. This was true, except as .to the shelving in the store building, which, being part of the property iiisured, was part and parcel of the realty, and as such was covered by the Mark mortgage and by the Cadwell mortgage and by the mechanic’s lien of Seekell. And, second, they represented the total amount of loss to be four thousand, three hundred and three dollars and seventeen cents, when in fact the total amount of the loss was much greater than that sum, and was fully equal to the total amount of insurance upon the property.
“And the foregoing being all of the material facts in the case, the court, as conclusions of law thereon, finds that the policy of insurance in suit was in full force at the time of the loss of the property insured, and that the plaintiff is entitled to recover the full sum insured thereby, to-wit, the sum of two thousand and one hundred dollars, with interest on said sum at the rate of six per centum per annum from the sixteenth day of October, 1884.”
I. It is provided in the policy that for “any false representations by the assured of the condition, situa-
II. A point is made as to the condition of the pleadings, and that no waiver is pleaded. The answer
III, On the twenty-ninth day of February, 1884, Creager made to P. Cadwell a deed of the premises,
V. In the proofs of loss the total amount stated was four thousand, three hundred and three dollars and
The judgment is affirmed.