| Ill. | Apr 20, 1904
delivered the opinion of the court:
It is first contended that the Masonic Building, Loan and Savings Association is the real party in interest herein, and that the suit should have been brought in its name, and not in the name of Peterson, for its use. The policy was issued to Peterson, who was the owner of the property insured and paid the premium. The policy provided in case of loss the insurance should be payable for his account, and he was interested in the collection of the policy to the end that the amount thereof might be applied in satisfaction of his mortgage indebtedness to the building association, and we are of the opinion the suit was properly brought in his name for the use of the association. Illinois Fire Ins. Co. v. Stanton, 57 Ill. 354" date_filed="1870-09-15" court="Ill." case_name="Illinois Fire Insurance v. Stanton">57 Ill. 354; St. Paul Fire and Marine Ins. Co. v. Johnson, 77 id. 598; Westchester Fire Ins. Co. v. Foster, 90 id. 121.
In the case of Queen Ins. Co. v. Dearborn Savings, Loan and Building Ass. 175 Ill. 115" date_filed="1898-10-24" court="Ill." case_name="Queen Insurance v. Dearborn Savings, Loan & Building Ass'n">175 Ill. 115, relied upon by appellant, the right of the mortgagee to bring the suit in its name does not appear to have been challenged, and that case is therefore not an authority against the position that the suit was properly brought in the name of the insured for the benefit of the mortg-agee. In Illinois Fire Ins. Co. v. Stanton, supra, it was said (p. 356): “The interest only of the mortgagor was insured, but the policy contained a clause that in case of loss the money should be paid to McClellan, the mortgagee. The contract being with the mortgagor, the legal title vested in him, but it was for the benefit of the mortgagee. Hence the suit was properly brought in the name of Matthew Stanton, the assured, for the use of the beneficiary.”
It is next contended that Peterson ratified the action of Burt in surrendering the policy of the Hartford company for cancellation and in accepting the policy of the Firemen’s company in lieu thereof, and that by reason of that fact no recovery can be had against the Hartford upon its policy. The case was tried upon a written stipulation as to the facts. The stipulation contained only the evidentiary facts, and the Appellate Court having found the facts different from the circuit court, it was its duty to find and incorporate into its judgment the ultimate facts upon which it based its judgment, (Purcell Co. v. Sage, 189 Ill. 79" date_filed="1901-02-20" court="Ill." case_name="W. H. Purcell Co. v. Sage">189 Ill. 79; National Linseed Oil Co. v. Heath & Milligan Co. 191 id. 75; Irwin v. Northwestern Life Ins. Co. 200 id. 577;) and that court having found that Peterson had not ratified the action of Burt in surrendering the Hartford policy for cancellation and in accepting the Firemen’s policy in lieu thereof, which finding, like that of waiver and other kindred questions, is a question of mixed law and fact, this court is bound by such finding. It is therefore conclusively established upon this record that Peterson did not ratify the action of Burt in surrendering the Hartford policy and in accepting the Firemen’s policy in lieu of that policy.
The policy of the Hartford Fire Insurance Company contained the following provision: “This company shall not be liable under this policy for a greater proportion of any, loss on the described property * * * than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property;” and it is contended that the Appellate Court erred in rendering judgment for the full amount of the policy issued by the Hartford company against that company, and it is insisted that in no event should a judgment be rendered against said company for a greater sum than one-half the amount of the loss sustained by Peterson by reason of the destruction of said property by fire. We are of the opinion the contention is correct. At the time the property was destroyed there were two policies of insurance thereon,—one issued by the Hartford company for $1700 and one by the Firemen’s company for $1700,—and the policy upon which this suit is brought provides in express terms that the Hartford company shall not be liable for a greater proportion of any loss than the amount which its policy shall bear to the whole insurance on said property, whether valid or not or by solvent or insolvent insurers. It appears that after the fire Peterson was notified of the issuance of the Firemen’s policy, whereupon he made proof to that company of loss and instituted a suit upon the policy. We think that within the meaning of the clause in the Hartford policy providing for an apportionment of the loss in case of other insurance upon the property, the. policy issued by the Firemen’s company should be treated as insurance upon the property, arid that the loss should be apportioned in accordance with the terms of the Hartford policy.
It is, however, said by appellee that the question of the apportionment of the loss between the Hartford and Firemen’s, companies was not raised in the Appellate Court, and that that question cannot be raised here for the first time. It is true, as a general proposition, that questions^ not raised in the Appellate Court will not be considered in this court, and it is conceded that question was not raised in that court. In the Appellate Court, however, the Hartford company was appellee and was attempting to sustain the judgment of the circuit court, which was in its favor, while in this court it is appellant and is attacking the judgment of the Appellate Court, which was against it, and we are of the opinion, as the provision in the Hartford policy now relied upon to show that the insurance should be apportioned appeared upon the face of the record in that court and should have been considered by that court in determining the amount of its judgment, the question may be- raised in this court by appellant although it is raised here for the first time.
The judgment of the Appellate Court will therefore be reversed and the cause remanded to that court, with directions to find the amount of the loss occasioned by the destruction by fire of the property insured, and to render a judgment against the Hartford Fire Insurance Company for an amount equal to one-half of said loss, with interest at five per cent from the 17th day of December, 1893, but in no event should the said judgment exceed the sum of $1700 and interest.
Reversed and remanded, with directions.