This аction is on a policy of fire insurance for one thousand dollars. Plaintiff obtained judgment in the trial court.
It appears that plaintiff was indebted to one Bnren, who held his note for twelve hundred and fifty dollars and mоrtgage to secure it on hotel furniture owned by plaintiff. That he had a policy on such furniture issued by this defendant for $1000,■ loss, if any, payable to Burén, mortgagee, as his interest might appear. That policy expired, and within a few days thereafter, on the 31st day of May, 1911, defendant’s agent called on plaintiff and solicited him to renew it. Plaintiff then paid the balance of premium on the old policy, which to this time had remained unpaid, and stated to the agent that he wanted the policy but did not have the money (eighteen dollars) with which to pay the premium, and for the agent to go to Bnren “and he will take the policy; he can’t afford to let it expire and won’t. ”
There is very little evidence in the case. It consists of the testimony of plаintiff himself and some written reports of the agent to the company and some letters from the company to the agent. It seems that the agent went to Burén and got the premium for the new policy. Neither of them were witnesses. But certain it is, the policy was issued in plaintiff’s name as the insured, “the loss if any payable tо Bnren, mortgagee, as his interest might appear.” Burén must have paid the premium, for it was shown to have beеn sent to defendant in one of the reports, and the policy was delivered to him, for it is so alleged in the petition, or, what is the same thing in legal effect, the agent may have accepted his promise and advanced the premium to defendant and deposited the policy in his safe for Burén. The fire occurred several weeks after the policy was thus issued and, if not already with one of them, it was then handed over either to
Prom the fоregoing it appears that defendant issued the policy in suit to plaintiff, insuring his property in the sum of one thousand' dollars, loss payable to Burén as mortgagee as his interest might appear to be, and the prеmium was paid by Burén. Now it is true a mortgagee has an insurable interest which he may protect by insurance to himsеlf, in his own name. But this was not that kind of a policy. Gillespie told the agent when the Tatter applied to him fоr renewal, that he wanted the policy, but had not the premium and for the agent to go to Burén and get it. The only claim Burén had, as is shown on the face of the policy, was as mortgagee with loss payable to him as his interest might appear; which means that if he should have. no interest at time of settlement, the entire lоss would be paid to Gillespie as owner. Defendant has not paid anything on the policy to the mortgagee and is free of any claim by him. It seems then that it should, in justice, pay the plaintiff; otherwise it would escape alogether.
The assignment of Burén’s interest to plaintiff was introduced and objected to, but defendаnt insists that there was no proof of the assignment. That, however, was not made a ground of the objectiоn. The objection is in effect a concession of the assignment, the’ only ground of objection being thаt it was inadmissible' in evidence because it was assigned after the action was instituted.
An attorney’s fee was allowed and it is claimed the case does not justify it under the cases of Blackwell v. Insurance Co.,
But we have evidence in this case tending to show a want of good faith in the defense. A special agent of defendant wrote to it that it was liable, but he thоught it best to make a show of contest, to force a compromise of the claim.
We have not discovered any error materially affecting the merits of the controversy. The cause was tried by the court without the aid of a jury, and no instructions were asked. Every intendment is with the judgment, and hence it is affirmed.