135 Mo. 649 | Mo. | 1896
This is the second appeal of this case to this court. Por the detailed facts that led up to, and resulted in, the institution of the original suit, and the final judgment therein, reference is made to the statement as given in the first opinion of this court in the case reported in the 123 Mo. 403.
Generally stated, the original suit was instituted by Havens & Richardson as plaintiffs on several policies of insurance effected by one Sage, on property purchased by him from plaintiffs, and upon which he had agreed to carry insurance to the amount of $4,250,
At the first trial in the circuit court the insurance companies contended that the extent of their liability was the value of the property' destroyed; that section 6009, Revised Statutes, 1879, did not apply. The trial court, taking that view of the law, found the actual value of the property destroyed to be only $3,695, and, being less than the amount due from Sage to plaintiffs as evidenced by their notes secured by a deed of trust on the property destroyed, rendered its judgment for plaintiffs against the defendants, Sage, McAdam, and Harrington on their answer in the nature of an inter-plea and cross bill. From that judgment the defendants Sage, McAdam, and Harrington alone prosecuted an appeal, contending that under section 6009 above named, the insurance companies were liable for the full amount of the policies. Being written to insure real property, and the property being wholly destroyed, they were entitled to the difference between the total amount of insurance and the amount paid by the insurance company on the judgment in favor of plaintiffs as mortgagees.
This court, in an opinion delivered on the sixth day
“We think the circuit court erred in not applying section 6009, Revised Statutes, 1879, to the facts and in not holding that the aggregate of the policies conclusively fixed the value of the mill and machinery and the measure of damages, less the sum of $380, the amount of machinery not exposed to the fire. * * * As the circuit court found the insured had complied with all the conditions on their part and the only question being whether the statute applied, it would appear unnecessary to put the parties to the cost of another trial, hence judgment is reversed with directions to the circuit court to render a decree for the aggregate amount of said policies, less $380, with interest at six per cent thereon from the time of filing the cross bill by Sage and his assignees and distribute the fund as the rights of the plaintiffs and Sage, McAdams, and Harrington to the same shall appear.”
After the cause was remanded to the circuit court, Warner, Dean & Hagerman (the former attorneys for the defendants Sage, McAdam, and Harrington) filed by permission of the court an intervening petition setting up that the interest of Sage, McAdam, and Harrington in the policies of insurance had been transferred to them; in reply to which, and as a supplemental answer, the insurance companies say that the plaintiffs Havens & Richardson were paid in full all sums coming to them on account of the policies sued on, by the payment to them of the whole amount of the judgment originally rendered in the circuit court in the cause, and that said plaintiffs never appealed from said judgment and are therefore not entitled to recover any further sum from the said insurance companies; and
It was admitted that the insurance company had paid the judgment originally rendered by the circuit court in favor of Havens & Eichardson, as set out in their reply and answer.
A form of decree to be entered was then presented to the court, and it was admitted that the proper order to be rendered therein was that rendered except as to the amount. That is the only question involved in this appeal; the intervenors, for themselves and for their codefendants Sage, McAdam, and Harrington, contending that the amount of the judgment should be ascertained by crediting the insurance companies only with the amount that they had actually paid. The insurance companies, who are prosecuting this appeal, on the other hand contending, as set out in their reply and answer, that they were entitled to credit for the amount of the claim of Havens & Eichardson against Sage as of the date when they paid the judgment in favor of said plaintiffs.
The circuit court, taking the view of the intervening respondents and their codefendants, rendered judg
Just what is the controlling reason for the contention of appellants is not quite clear to the writer. They say that they are and were entitled to the benefit of their settlement with Havens & Richardson (the plaintiffs in the original proceedings) on account of their failure to appeal from the judgment rendered in their favor in the first instance; that instead of being only allowed the amount of $3,695 and interest (the amount of the judgment in favor of Havens & Richardson in the first suit) they should be allowed the full amount of $4,250 with interest from November 4, 1884, which Havens & Richardson were actually entitled to have received.
Conceding for the sake of the present appeal, as contended by appellants herein, that the judgment in favor of the plaintiffs in the original proceedings against the insurance companies stood unappealed from and unreversed by the judgment of this court on the first appeal (a contention however in the face of the positive language of this court in its decision therein rendered) what right does that give to the insurance companies to claim the benefit of the difference between what should have been paid to plaintiffs and what in fact they did pay in settlement of plaintiffs’ judgment against the companies.
By no rule of law with which we are familiar did the payment by the • defendant insurance companies of the judgment rendered in favor of plaintiffs Havens '&
These policies did not insure the claim of -Havens & Richardson against Sage, but insured the mill property only. The policies were upon the mill property, and were for the benefit of Sage, the equitable owner thereof, who paid all the premiums thereon to the company and only by reason of the agreement made by Sage with Havens & Richardson and the insurance companies were the companies authorized to pay to Havens & Richardson the sum that might at the time of the loss by fire be due from Sage to Havens & Richardson.
There was no fixed definite sum to be due and' payable absolutely to Havens & Richardson by the insurance company for which they could ask an absolute credit against the full liability under the policies, whether paid to Havens & Richardson or not. Nor were the insurance companies entitled, by reason of any contract that has been disclosed in this record, or by .operation of any provision of law statutory or otherwise with which we are familiar, to compromise or pay Havens & Richardson a less sum than was actually due to them from Sage at the date of the fire, and substitute that settlement and payment as ’and for the amount of the Sage indebtedness to Havens & Richardson in a settlement with Sage for his damages by reason of the loss by fire of the property which they contracted with him to insure against fire.
Had Sage discharged his indebtedness to Havens & Richardson in any way before the fire, then the full sum
To sustain appellants in their contention they must have had some interest in the insurance fund of $8,400 by subrogation or assignment. The companies did not by their policies insure the debt of Havens & Richardson, so that in paying it they could ask to be subrogated to the rights of Havens & Richardson as mortgagees of the mill property. Under the contract of insurance entered into between Sage and the companies, they simply agreed that in the event of a loss by fire of the mill property they would pay first to Havens & Richardson, as mortgagees of the mill property, the amount
Can their violated agreement in not properly distributing in full the fund in the first instance, be said under any circumstances to inure to their benefit! The fund in their hands due on the loss was to be paid to the legal and equitable owners of the mill property in the order of the legal owner first as his interest might appear .and the remainder, if any, to the holder of the equitable title who took out and paid for all the insurance in this case. Now, if the companies, as agents or trustees for Sage, by compromise or coercion, legal or otherwise, paid out to the holders of the legal title less of the fund in their hands than they were entitled to under their contract with Sage in the matter of the apportionment and distribution of the fund, all left in their hands, as agents or trustees, would be payable to the principal in the contract and not to the agents or trustees negotiating or effectuating the compromise or settlement. All profits made by an agent or trustee as such, go to the principal for whom they act and not to the agent or trustee.
The companies had no interest in the fund of $8,400, further than as distributees under the terms of the policies, and as agents for the insured they must, by the express terms of the policies, as by all rules of law as well as business governing agents, account to the principal with whom they have contracted for the undistributed funds remaining in their hands. By the terms of the policies the companies were legally obligated to pay $8,400 for the ultimate benefit of Sage, and they are entitled to no credit in the obligations arising under the policies, except in so far as they can show actual