88 Wis. 450 | Wis. | 1894
It was conceded on the argument that both Arquette and Schaller db Mg Key had insurable interests in the building' of Mrs. Mulhali. This could scarcely be questioned, at least since the decision of Horsch v. Dwelling House Ins. Co. 77 Wis. 4.
It seems .clear that the policy of insurance was not written in. accordance with the wishes or intention of Arquette. Rut it was received by him with full knowledge of the form of its writing; and the indorsement making the loss, .if any, payable to Schaller & McKey wms made under his direction. The policy must be held to embody the agreement of the parties.
This is an action at law upon the contract itself. The court was not asked to reform it on the ground of mistake or otherwise. Perhaps it could not be reformed in this action, even if it were shown to be a proper case for reformation in a proper action for that purpose. So the recovery must be according to the terms of the contract itself. The contract, by its terms, insures only the interest of Arquette. The amount of his loss alone is recoverable upon it. By his appointment, made at the time of making the contract, this loss is payable to Schaller <Jk Mo-Key as their interest may appear. Their interest is larger than Arquette’s loss. 'There is nothing coming to Arquette after satisfying Schaller db McKexfs interest. There is nothing due to him from the garnishee,— nothing to be garnished. Schuller & MoKey should recover from the insurance company the amount of Arquette’s loss. Judgment should be for the insurance company in all the garnishment actions.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in accordance with this opinion.
