*1 [April Term, oe Vol. strictly quantum case, a the demurrer meruit and dered — evidence, therefore, improperly was sustained. petition On a plaintiff may, advised, new trial the frame if so accurately specifically quantum more meruit. and to declare remanding I judgment the reversing therefore concur cause. Blair, J., concurs in views. these Company William Hart H. Doerr v. Insurance National ford, Appellant. One, July 30, 1926.
Division 1. ment. In an Instruction: Abandon- AUTOMOBILE INSURANCE: Refused Waiver: provision policy, action warranty a on an insurance which contained void, policy a certain if wherein therein should be was violated waived, company, warranty hav- claimed that was ing having evi- asked and the that there was no refused an instruction court thereby' right policy, lose its dence of a waiver of terms did not so, afterwards, being persist joined contention, forced to do in that because jury. submitting that issue Locking Automobile. 2. -: Precedent Waiver after Loss: Condition: whereby against provision policy, A the holder is insured in an insurance by theft, a that in consideration of reduction of the loss of his automobile fifteen maintain a certain leave it without regulаr premium, per the insured would at all times cent locking the automobile and would nor named device on device, void, locking policy be or otherwise would policy expressed in force at the time which the was to be a condition being theft; at the time the machine not locked was of the stolen, and the device adjuster, theft, company’s knowledge promise its after with a locked, that if the automobile was not found within not that the device was condition; paid, sixty days policy not a waiver of the would was be position having altered his on account of the ad- in no wise the insured juster’s promise, breach of the condition. the nature of estopped, company is not but is entitled to a invoke must be construed with The contract reference to insured, purpose subject and its use and the of the con- complied if imposed, was one which with the condition before dition by any supplied act the insured the theft could but its locked, policy suspend while the device was not there- effect was to [Distinguishing adjuster’s promise Carp not a waiver. fore Queen 528.] Adjustment. agent -: The fact -: -: 3. insurance go signed tоld the insured who to the ad- adjusted estoppel neither justing company his loss nor and have waiver necessary adjustment the terms of the there where adjustment. liability without event be no could a breach a condition Waiver: Consideration. Where 4. -:-: it, promise pay policy suspends it after the loss ac- has an insurance breach, knowledge in order to amount to a waiver of the’ crued and condition, consideration, supported or else the a new elements of must be present. estoppel must be technical seventy pay Compromise. about The offer of 5. -: policy, loss as the per offered after amount stated in cent the amount v. Nat. Fire Ins. Doerr po- premium paid purchased insurance which the would have under licy maintained whole amount of the containing locking that a device should at times be no all liability automobile, acknowledgment is not an by way compromise, policy, an offer made or as species of novation.
6. -: was one Tender of Premium Paid. the term of the Where Back year, months; it had it covered the interest run four of mort- gagee face, satisfiеd; knowledge for one half its which warranty aof breach the insured of a did not come to the' insurer until depended upon after the and the was material and is as a de- breach fense, paid required. a return depends 7. WAIVER AND Intention: ESTOPPEL: Consideration. Waiver shading on intention in so far as it is a distinct doctrine of the law not into estoppel. pends depends Estoppel It on what one intended to do himself. de- adversary what one caused his do. Juris-Cyc. p. Corpus Appeal Error, J., 2625, References: 4 C. Section Insurance, J., 406, 326, p. 27. n. 73 New. 26 C. Section n. Motor Vehicles, Cyc., p. 50, 28 n. 59 New. Springfield Appeals. Transferred from Court Reversed.
Hogseti Boyle appellant. Gray & and Howard (1) refusing- appellant’s in peremptory The trial court erred evidence, at the of all the struction nature of demurrer close (a) requirement, a reasonable and valid The lock comply respondent’s failure to with rendered the was concerned, null and void as far as theft the automobile J.) Co., (N. 209; High, Billet v. 129 Ins. Co. v. 153 Ark. Ins. Atl. 156; 1161; Co., Co., Frick v. Ins. 184 W. Brooks v. Ins. 11 S. Mo. 349; Co., 255; Co., v. 17 Mo. Mers v. Ins. 68
App. Loehner Ins. Mo. 19; 21 131; v. Conn. First Co., Glendale Woolen Co. Ins. National (b) 45. Before the Co., Bank 50 N. Y. forfeiture could v. Ins. upon must have or conduct reliеd been such
be waived the acts dissenting opinion estoppel, as to work showing such Appeals properly holds that no was made. Court 231; Casualty Co., v. Co., App. Mo. Dezell 176 Bolán v. Ins. 58 Mo. 100; Armstrong 227 Co., v. Ins. Mo. v. Ins.
253; Co., Lowenstein 560; Co., App. 394; Ins. 180 Chandler v. Mo. Gerhart 130 Y.N. Co., App. 596; 86 Co., Mo. Colonius v. Ins.
Realty v. Assurance Co. of Railroad App. Trainmen, v. Brotherhood 145 56;
3 Boren Mo. App. 277; Co., 62 Mo. 137; Cohn v. Ins. App. Mo. Keet-Roundtree Adj. App. 504; v. 1 Co., Co., Ins. D. G. Co. v. Ins. Fed. Series) 418; N. Y.
(2nd
800;
Co.,
Wolff,
Ins.
159
Ins. Co. v.
Gibson v.
674;
333;
Co.,
App.
Co.,
95
88
Gibson v.
IT. S.
Dolan Bis.
Mo.
Ins.
v.
268
[April Term,
Yol. 315.
oe
82
App. 519;
Mo.'
Knights
54;
Walker
Maccabees,
App
v.
177 Mo
Tinsley
App. 704;
Assn.,
v. Ins.
199
Aid
Co., Mo.
Cerеsia v. Mutual
211 S.
83;
(c)
W.
Co.,
Shusterman v.
(1) merely promissory war- The lock clause ranty subsequent. or a condition The breach thereof would not Ins. Co. Doeer v. Nat. voidable, rely upon in- policy void but same was render the appellant promptly declare a on ac- cumbent forfeiture 278, 281, 1291; Min- 280, 32 C. J. Gold Issue count thereof. 604;
ing Co., Travis v. Continental Ins. v. Ins. (2) warranty, a breach of or a condition sub- S. W. 768. Waiver of estoppel. Royal sequent, is matter intention and not of Lance v. Yeomen, American 535; v. Brotherhood of S. W. Schwab Vaden, 261 S.
264 W. Life W. Holt v. National S. Assn. (3) By agreeing 263 S. pay & Accident Ins. W. Life respondent’s requesting adjuster’s return to loss, by office feeling security time, lulling respondent from into a time to promptness, by failing ap- declare forfeiture with reasonable asserting defense, ground such even on the pellant is barred from estoppel. $1400, insuring sued on a for
LINDSAY, C . The by granted against loss theft. The insurance was un- his automobile open policy by held the Consolidated Bond & pursuant der and plaintiff’s Security Company, which took note secured chattel mortgage upon payable automobile. The insurance was might security company appear. as their interests and to judgment $723.83, Plaintiff the difference between the total unpaid sum of the insurance and the amount of indebtedness mortgage upon аutomobile, the defendant secured the chattel brought. having secured, this suit was purchased the note so before judgment Springfield Appeals, was affirmed cause was certified dissent, was a 253 W. there S. dissenting judge, and under his view request at the
this court majority was in conflict with certain decisions opinion of the that the *4 City Appeals, and of the Kansas Court of Louis of of the St. Court Appeals. question upon case, the which in the the paramount question
The jury upon a case for the plaintiff divided, is whether the made court a certain condi- had waived the breаch of issue, that defendant the provided that consideration the policy. The tion of the that in- was made condition the granted, it reduction approved named and all maintain a certain times sured would in- automobile and that the working order on the locking device locking device, the without the automobile would not leave sured made; otherwise, the should was reduction which allowance of automobile was concerned. of the as the theft null and void far required, locking which locked device maintained the plaintiff The night the car was geаr admitted that on car, of the but shift op Term, [April You. turning key garage and after run it into his stolen, lie had key ga- therein. The door of the had left locking device, he by breaking garage had been entered by him, and the rage was locked that lock. authorizing recovery,
. his Instruction case, under plaintiff’s The turning key of the de- theory submitted was through acts, certain key that, therein, vice, he had left the agents, defendant’s as submitted him and had between conversations by instruction, been a waiver defendant of the there had the note defendant was not purchase The policy. of the breach liability showing a admitting act instruction as an included they instructed the were jury the court breach, and waiver of the had satisfied the interest of defendant fact that the consider the pro- liability. This, because certain an admission mortgagee, as policy. of the visions instruction at peremptory for a had asked
The defendant
whole
and at the close of the
case. The
plaintiff’s case,
close of the
there
no
an instruction that
was
evidence
also asked for
defendant
agents
its
of the terms
part of defendant or
waiver on the
which was refused.
policy,
jury
instruction which told the
an
gave
The
for defendant
court
key
leaving
therein,
turning
lock and
plaintiff’s act of
warranty in
policy. Thus,
compliance with the lock
was not a
right
upon the claim of waiver on the
to recover
founded his
policy.
The defendant hav-
of the breach of
part of defendant
was no evidence
such
ing
specific instruction that there
asked the
contention,
waiver,
right
persist in that
because
did not lose
submitting
joined in
that issue to
being
so,
do
afterward,
forced to
Bry-
Everhart v.
Pryor,
210 W.
jury.
S.
[Torrance
Ins. Society,
Co. v. Fire
Kenefick-Hammond
son,
there. He testified agent general who had who, plaintiff' said, was Norman, Mr. policy. Norman instructed countersigned and delivered plaintiff stated it —“to Adjustment Company, as go to the Midwest corporation adjustment company was This my adjusted.” have loss Mr. Camp- for it also a manager, and was a Mr. Garrett of which claims the settlement investigator and qf bell policies. business insurance under charge the officeand assumed Campbell of losses. adjustment of the latter. The absence Garrett, duties of *5 testimony to what occurred by defendant arises a waiver report As to the mentioned. plaintiff persons between that “I told Mr. Norman testified: Norman, plaintiff the loss to v. Nat. Ins. Co. Doerr night before; garage key turned the and my car put I Testifying his lock on the door.” as to interview Yale locked “explained he Campbell, everything said to him” plaintiff with car and the condition in which he found how he left about garage. on the lock key locking him for the and
Campbell asked device plain- init the lock. Plaintiff testified Camp- tiff him he had left that told ways will look into-that. We have “Well, finding said: we bell you sixty days find it for before the perhaps up cars and we can you.” said pay Campbell and if we will He told him we don’t try later, him, and he would plain- back and see locate come tiff’s went back about three weeks and in- car. Plaintiff car, Campbell nothing had been heard by that from the but formed they looking it, again. for and was told to come back were still thirty-five days, was told the same thing. He went in about back again plaintiff said: “I went back within testifying, Further days day asked him if he had sixtieth heard from three days yet. We can’t my car and said: ‘You have three tell what he days, back happen day three and come the sixtieth is liable to ” straighten up.’ will if we have not found it we Plaintiff further sixty-first day and was said: “I went back the referred Mr. Campbell Garrett, $1040, to Mr. who told me he would allow me any told me he could not allow accept more, I not it. He me would being premium all called for without this lock accept I I it. went back it, days told him would not I three company denying later and Mr. Garrett had letter lia- from bility. My policy. $70 I of over on the paid premium car part has found and no has ever never been been returned.”
Campbell denial testified that he did tell part liability part company, because that was not on the printed duty “We have adjuster. as an Garrett testified: forms my any doubt in mind called non-waivers and when there is about agree on a non-waiver and carrying contract, out the we will submit approval. I didn’t take company non- contention to the Campbell adjusted waiver in this case.” further testified He confusion; Campbell dealt losses where there were no conflicts directly. said that between the first and Campbell with the insured loss, about the and told second to Garrett visits of he talked He also attending it. said it was the facts and circumstances notify insurance their practice “usual and custom to warranty.” the lock when there had been a claim breach of waiver of the This is is one of con- case wherein the after, occurrence of dition insured complied to be with in a fulfillment state of of a which was to one condition" *6 op [April Term, 272 Yol. 315. required the insured at the time of the loss, occurrence the and was protection so against to be as loss. a measure Thе failure insured observe the condition was not known to the until insurer the loss The occurrence of the and communi- occurred. cation of defendant par- the circumstances to fixed the status time, plaintiff’s depend ties at that the force of the ease is made to upon place upon what took and after that time. plaintiff’s upon theory was case that a waiver submitted found, during days forfeiture could from the failure the sixty deny liability adjuster and from if the statement paid.
automobile would be recovered, was loss There is no evidence altеred his condition account of what claim, was said him. did not nor was in He there submitted by him, expense, instruction obtained that he incurred claim or doing anything done, refrained from he otherwise would have or, except upon that he call anything, did three subsequent estoppel We think there was no element of in occasions. case, theory did it not submit that his majority opinion condition had been altered. The of the Court of Appeals requiring holds that the condition the device be locked when owner, the automobile was left condition subse quent ; void, only that its viоlation policy rendered the void able, insurer, election of the that there could be a waiver without the estoppel, element of or new consideration between Queen parties. Co., in 116 Carp The decision Insurance v. Mo. App. 528, is is made cited, authority, and reference to the rea soning There, in J., opinion that case. Goode, requiring keeping by contained Clause, the Iron Safe the in fire-proof sured of account in a and of his books inventory, In opinion, Judge spoke safe. difficulty of the extreme Goode many in instances in distinguishing repre between warranties and ‘‘ sentations, promissory affirmative warranties same kinds representations,” (l. 540) c. said that no consistent effect given by laying the courts to these distinctions in down rules. important He said: “What is to the sound decision of a cause where question involved, closely in such a is is to know how it was necessary to keep particular the insured clause of the which the company asserts he violated, and the effect of a violation on right indemnity. The proper technical name and classification of the they are importance; clauses often of minor we think in are present jurisdiction instance. In this and in others, most the in required stipulation perform substantially sured like the one applied under particular cases, advisement. When this rule though means that keep the insured has failed to the clause all yet respects, so kept if he has far purpose that its will not be de- Doeer v. Nat. Ins. right indemnity remains intact. v. Ins. feated, Ms [Malin 56; Meyer Ins. App. S. W. Brothers v. Mo. 343; App. Burnett v. Western As. Virginia (Tenn. Redding, 68 Fed. McNutt Ins. Co. Co. v. App.), Again,
Ch. 45 W. l. c. he said: S. “Whether the 61]” representation, is a clause agreement proofs like to furnish subsequent, nature of a condition *7 Being subsequent, the contract for in of loss. akin to conditions regard performed, to whether it was surance took effect without necessarily, force, plain a -and of its own forfeit breach of it did not requirement in right indemnity.” tiff’s His conclusion that the in safe was akin kept the that be an iron the books should proofs of loss, or in aid that insured would of the condition furnish was founded subsequent, and of condition the the nature of a is, which, it was one with, dealt that character of the condition strictly complied it, there was had not with sо while the assured purpose. purpose The real nearly compliance a as to effect the real something furnished the insured after to be done or looked to property value the determination the before, loss and not the accepted plaintiff, in destroyed. In this case the condition in per cent the amount of the fifteen consideration of a reduction of leaving automobile, to the that, precedent premium, must be construed with The contract would be locked. the device use, insured, and of its subject nature oi the reference to the condition of a na imposed. It was a purpose of the condition supplied could not be before loss complied if with ture, which, provision effect of the loss. The by any insured after act policy, and while the left when suspend the terms of the agree We therefore with locking the device. the automobile without 41) (253 l. S. W. c. : dissenting opinion the conclusion stated plain coupled with the act terms, by its own policy then, “The was stolen.” in the automobile tiff, was not force when up- are cited as cases page certain majority opinion, In the go jury a case made there was holding contention that cases, these and the some of notice question on of waiver. We constituting In Pace v. Insurance facts them. Iron Safe Clause of his complied with the assured had not inventory burned, had been his books and
policy, and was claimed adjuster, the fire. had .set that he question was raised kept, presented a had not been knowing the Iron Clause Safe sign. The ad- refused to the insured agreement, which non-waiver he did instruct liability, but juster admitted nor denied neither by resorting in- proofs of loss prеparing insured as to a method account, thereupon bank and to the insured’s voices insu-ed. proofs make, manner, in a statement employed party a 315 Mo.—18. [April Yol. Term, oe testimony concerning of loss. It was acts the in- those
sured, adjuster, so induced Appeals that the Court of held But, had case, there -been a waiver. the coirrt sail: “.Had plaintiffs adjuster not received instructions from the as to preparing proof the manner and method their solely presented been case what defendant’s witnesses tes- did, very tified said and it would then have been a close thereby if a waiver had case of been made for submission to jury.” In that quoted case the court referred to and the rule as also, Myers Casualty App. 682, stated a case cited in majority opinion. rule, stated, as there w'as that: “In may a such case waiver of the forfeiture' result from the conduct of may rule, that, insurer stated where be the insurer knowledge with cause of forfeiture exists so conducts himself justified believing towards right the insured that latter is thereby expendi will invoked, forfeiture not be and is led into the money presenting ture time or insurer, demand wаiv presumed. rely er will right The insured has the on the implied *8 and, assurance in he it, contained such conduct has acted on deny insurer will not permitted,to liability be hark back and on the ground prior his actions voluntarily show' he abandoned the .had Co., claim. v. 176 Mo. Insurance Crenshaw v. Ins. [Dezell App. 678; Assn., 63 Mo. v. Fire App. Bolan v. Cohn ” App. 271]
Similar in Thus, situations were existent other cases cited. in Ramsey plaintiff v. App. give Insurance 160 Mo. to failed prescribed notice of his illness within the policy; time his health but, with knowledge of fact up that the insurance followed inquiry, making calling requirements, information, put- ting the expense. insured to trouble
In Association, Bolan v. 58 Mo. waiver insured’s failure to make proofs prescribed within the loss time was based tending during prescribed evidence period to show' that plaintiff during could proof, period have that furnished the but that by he was led to believe statements conduct the defendant‘s agents required. proofs unnecessary, were and w'ould not be element, In these estoppel. and other present cases there some plaintiff urge Counsel for is a matter of intention and waiver estoppel. Upon subjеct by the discussion Goode, J., in Fairbanks, Baskett, App. 53, Morse v. is en & Co. , lightening appropriate said, : page here. It wrns there at is a depends “Waiver far as it distinct doctrine of intention so depends upon . . . shading estoppel law' Waiver into himself; estoppel, what one intended to do rather what he Fire Ins. Co. Doerr v. Nat. rights valid waiver of adversary may his be a caused to do. There distinguished (that is, as from substantial of a formal certain kind from rights) showing that waiver differs consideration, without involved, we rights are . . . But substantial contract. where by to be apprehend supported be a consideration a waiver must ’’ valid. Norman, agent signed who In case, this testified that go adjusting company and his policy, him to have loss told because, adjustment necessary by the terms adjusted. An by plaintiff lock policy, the non-observance right of mortgagee, vitiate the and the ivould not automobile automobile, or, to recover the bound all events defendant was though mortgagee, did, which it even satisfy the of the should claim deny liability plaintiff. circumstances, upon
Basing his under the statements right, made that, does not agent adjuster, claim becausе expressed him, he altered his of the intention so condition Grove, to Phoenix Insurance In the annotation manner. S.) 3, case, there is a (N.
L. A. an Illinois discussion of dis- R. may -waiver, knowledge what constitute where between is tinction loss, may acquired the insurer after and what waiver where It knowledge acquired loss. is there said: “It is before is manifest is different where the parties acquires situation of insurer that the knowledge policy occurring of breach loss, after loss before notice than it where reaches before loss. Aside from re- respect proofs the contract has quirements fulfilled its against provides happened. when event which it has purpose possibility rights parties are then fixed. There no the in- be misled to his harm silence or non-action of the sured can com- pany breach which occurred before loss. may pay wishes, faijg if it
company, course, if it to let the in- do, latter for, know what it intends cannot be sured injured, *9 get late him to other too insurance. after Therefore situation, logical result of only to be the this not would seem part mere or non-action on of the will silence not any rights, waiver, direct act the nature its but of affect knowledge breach, promise pay, to of the must be based consideration, else the of a good .estoppel on technical elements company, -by conduct, its present; is, put must be must have disadvantage, or expense, the insurer to some cause some beforé This in itself would be enough it can be made liable. consideration pay.” We think the implied promise support conclusion be avoided. there stated cannot -was an act pay plaintiff $1040 submitted
The offer of Garrett statemеnt, plaintiff’s According tending show waiver. this oj? Term, Vol. 315. [April paid premium offered as tbe amount of insurance wbicli tbe purchased policy locking would have containing under not warranty. acknowledgment liability, offer of device was not an policy containing under the sued on was an offer provision, by way species made compromise, or as a of novation.
There is some brief discussion of the failure of defendant to tender premium. year, back The term of the one it had ivas and run about of the four months the time loss. covered the mortgageе, Knowledge and that interest was interest satisfied. did to' the breach not come the defendant until respect after the loss. The breach was to a material Un matter. der all a return of the required. the circumstances was not 326; J., C. L. C. Harwood v. Ins. R. Mo. [14 l. & v. Fire 181 Mo. c. Senor Muntz 113-114.] given reaching In these conclusions we have consideration to what Yeomen, was said in of American Schwab v. Brotherhood 148-155; Mining Milling 524, v. Fire Ins. & and in Fidelity Casualty Co., earlier case Dezell 276, 253, judgment cases. The should be reversed. other Seddon, G., concurs. opinion foregoing C.,
PER CURIAM:—The adopt- Lindsay, judges ed All oрinion as the court. concur. Philip
J. H. J. E. Smith, Coerver, Kealy, Lawrence Oliver Wroughton Grieves, William Appellants, v. Crescent Bayer-Rhodes Machinery Corporation, Lead & Zinc Com Supply Machinery Company. pany, and & One, July 30,
Division 1926. EQUITY: 1. Lien: One Mechanic’s Other Encumbrance. Under the stat- (Secs. 1919), purposes every one ute R. S. mechanic’s suit, only property one mechanic’s lien lien where is claimed and exists, priority is to other lien or encumbrance determine the of these liens, equity. extent at least the suit and to this becomes one in. Necessary Lien: Parties: MECHANIC’S under Bondholders Deed of property Trust. In a to enforce a suit mechanic’s lien on encumbered given payment bonds, only a deed trust secure the mort- gagor trustee, bondholders, necessary defendants, are mortgagor trust; where none of the creditors of the is named in the deed bearer; payable property, rents, were the bonds and all income and conveyed arising profits outright trustee; therefrom were the bonds trustee, given power delivered to who to deliver them were to authenticate them signature mortgagor’s president as trustee its therefor; receipt money in the event and take insurance should *10 damaged time to destroyed be used within a reasonable restore build-