10 S.D. 64 | S.D. | 1897
This action is on an insurance policy containing the following provision: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if * * * the subject of insurance be personal property, and be or become incumbered by a chattel mortgage. ” The insurance was on plaintiff’s household furniture and effects. Before the policy was issued plaintiff and his wife executed a chattel mortgage upon the property to secure a note of $451.50 payable on demand. An action was commenced to obtain possession of the property, for the purpose of foreclosing such mortgage, and the insured had given a redelivery bond. Sijb
Evidently upon the theory that the incumbrance affected plaintiff’s interest in the property, the learned circuit court
But, if defendant knew of the mortgage when its policy was issued, it is estopped from asserting a forfeiture by reason of the incumbrance. Authorities need not be cited in support of this firmly established proposition. It was recognized by instructions given in this case upon defendant’s request. Then the vital question is whether notice to Kimball was notice to the company. All the material facts concerning his relations to defendant are undisputed, and have been heretofore stated. The doctrine of ostensible authority is not involved. The record discloses no evidence from which it could be inferred that defendant intentionally, or by want of ordinary care, caused the plaintiff to believe that Kimball was authorized to act for it in any capacity whatever. Comp. Laws, § 3979. Whatever .authority Kimball possessed to represent defendant resulted from his employment by Stilwell. Was the latter, by reason, of his appointment as recording agent of the company, authorized to employ a solicitor, and did such employment clothe the solicitor with authority to waive the condition of the policy concerning incumbrances ? This inquiry must be answered in the affirmative. ■ It was so answered in effect by the territorial supreme court in the case of Lyon v. Insurance Co., 6 Dak. 67, 50 N. W. 483, and in principle by this court in South Bend Toy Manuf’g Co. Dakota Fire & Marine Ins., 3 S. D. 205, 52 N. W. 866, where the court used this language: “It is true, Runk & Co., were unknown to defendant, but, in having intrusted Ben Phelon with authority to contract for insurance
Subsequent to the fire and before the commencement of this action, an execution was issued upon a judgment against plaintiff, and the sheriff served notice of levy upon the defendant for any sum that might be due or owing from it to plaintiff. Defendant made a statement to the sheriff denying any indebtedness. These facts are alleged in the answer, admitted in a reply, and defendant contends that the judgment creditors are necessary parties to the action. The contention is not tenable. If defendant does not owe the plaintiff anything, his creditors can have no interest in the event of the action; and if he does, when the amount shall have been ascertained, any rights resulting from the levy will not be affected if these creditors are not made parties.
Without deciding that it would be reversible error in all cases to permit the jury, upon retiring for deliberation, to take the pleadings with them, the court is of the opinion that the statute does not contemplate that it should ever be done. Comp. Laws, § 5052. Pleadings should be construed by the court. Its charge should clearly define the issues of fact to be submitted, and no useful purpose can ever be served by allowing pleadings to be inspected by the jury. On the contrary, confusion and misapprehension of the real issues will usually result from such inspection by persons unacquainted with the