179 N.E. 790 | Ind. Ct. App. | 1932
Appellant, an automobile dealer at Topeka, Indiana, hereinafter referred to as "the vendor," on April 26, 1928, sold and delivered to Eugene Darrow, *85 one of the appellees herein, under a conditional-sales contract, a Chevrolet coupe for the sum of $600, of which $100 was paid at the time of delivery and the remaining $500 was to be paid in two semi-annual installments of $250 each, the first of which was due six months after the execution of the contract and the second was due 12 months after such execution. On May 1, 1928, Eugene Darrow, hereinafter referred to as "the purchaser," secured a policy of fire insurance from the State Farm Mutual Automobile Insurance Company covering the automobile in question; on November 28, 1928, the automobile was completely destroyed by fire, and, on April 13, 1929, the State Farm Mutual Automobile Insurance Company issued their check of $516 to the purchaser on his claim as a result of the destruction by fire of such automobile. On the same day, he applied $466 of the proceeds of such check upon a promissory note due the Noble County Bank Trust Company, upon which note the names of Grace McDermott and Mary Darrow (appellees herein) appeared as sureties; he also paid his attorney $25 of said insurance money for collecting the same and kept $25 for himself. The first installment of $250 was due at the time the automobile was destroyed by fire, but neither of the installments had been paid at that time and each remained unpaid at the time this suit was brought.
This action was instituted by appellant against Eugene Darrow, purchaser, Grace McDermott, Mary Darrow and the Noble County Bank Trust Company to recover the $516 insurance money paid Eugene Darrow by the State Farm Mutual Automobile Insurance Company for the loss by fire of the Chevrolet coupe. Trial was had by the court; finding and judgment for defendants, and, plaintiff's motion for a new trial being overruled, he appeals and assigns as error the overruling of said motion, the causes of which are: (1) The decision *86 of the court is not sustained by sufficient evidence; and (2) the decision of the court is contrary to law.
The conditional-sales contract under which appellee Darrow purchased the automobile in question provided that "title to said property shall not pass to the purchaser until said amount is fully paid in cash." The contract further provided that "in the event the purchaser defaults on any payment or fails to comply with any condition of this contract or a proceeding in bankruptcy, receivership or insolvency be instituted against the purchaser or his property, or the seller deems the property in danger of misuse or confiscation, the full amount shall, at the election of the seller, be immediately due and payable. . . . The proceeds of any insurance, whether paid by reason of loss, injury, return premium, or otherwise, shall be applied towards a replacement of the property or payment of this obligation at the option of the seller. Seller may insure said property against fire and theft to properly protect purchaser, seller and seller's assignee. The purchaser agrees to pay the premium upon demand and that on failure to do so, payment of said premiums shall be secured by this contract."
Appellant earnestly contends that "the agreement in the conditional-sales contract that all insurance money collected should be applied on the debt, or to restore the property, made the fund in controversy, $466, paid by the insurance company, a trust fund for the benefit of the appellant to the extent of the unpaid balance on the debt, and equity will establish a lien on the fund paid to appellee bank."
It is true, as contended for by appellants, that, in the instant case, the parties occupy exactly the same position as that of a mortgagor and mortgagee, and are governed by 1, 2. the same rules so far as questions of insurance are concerned. See Commercial Credit Co. v. Eisenhour
(1925),
Appellant contends that the parties, by the clause "the proceeds of any insurance . . . shall be applied towards the replacement of the property or payment of this obligation, at the option of the seller," entered into an agreement by which the purchaser became obligated to apply the proceeds of the insurance he received upon the payment of the balance of the purchase price of the automobile. That part of the contract referring in any manner whatever to insurance, provided as follows: "The proceeds of any insurance, whether paid by reason of loss, injury, return premiums or otherwise, shall be applied towards the replacement of the property or payment of this obligation, at the option of the seller. Seller may insure said property against fire and theft to properly protect purchaser, seller and seller's assignee. The purchaser agrees to pay the premium upon demand and that on failure to do so, payment of said premium shall be secured by said contract."
As was said in Nat. Fire Proofing Co. v. Imperishable SiloCo. (1916),
In the case of Zenor v. Hayes (1907),
In speaking of the rights of vendors and vendees relevant to insurance, the Supreme Court of California, in the case ofWhite v. Gilman, supra, said: "The plaintiff was a purchaser (conditional vendee) in possession, and could have insured the house, as owner, for his sole benefit; and if he had done so, in the absence of an agreement that the insurance should be paid to the vendor to the extent of the unpaid purchase money, the vendor could have no claim upon it."
Cromwell v. Brooklyn Fire Ins. Co. (1870),
The tenant, in the case of Batts v. Sullivan (1921),
It was held in the case of McIntire v. Plaisted (1878),
In the case of Waverly Sales Co. v. Ford (1917), 194 S.W. Mo. App. 1085, the defendant agreed to sell plaintiff's automobile for a certain sum, and any amount received in excess of such sum was to be divided between plaintiff and defendant. After defendant took possession of the automobile, he insured the same, and subsequently the car was destroyed by fire and defendant collected the insurance far in excess of the agreed price. Plaintiff instituted action to be permitted to share in the insurance money. While plaintiff was permitted to recover because of an agreement to insure, the court held that, in the absence of any agreement to keep the car insured, plaintiff would not have been able to recover. The court said: "Defendant was within his absolute right to insure his interest in the Sterns car in his own name, and to collect the same, and the insurance held by him was a matter solely between the defendant and the insurers and was in no way a concern of the plaintiff. The plaintiff could have protected his interest by *91 taking out insurance in his own name. It is but elementary to say that he is not entitled, under the original contract, to share in the proceeds of the insurance taken out by the defendant," etc.
In the case of Phifer Gossett v. Belue (1916),
In the case before us, appellant, as vendor and holder *92 of the legal title, as security for the purchase money, also had an insurable interest in the automobile and might have 5. protected the same by taking out insurance in his own name and requiring the purchaser to pay the premium or by requiring appellee to insure the property for his (the vendor's) benefit. Or, after the debt became due, he could have protected himself by repossessing the automobile, which he had a clear right, under the conditional sales contract, to do. He did not see fit to protect himself in any of the above methods. The fact that the debt was due and appellant was entitled, at his option, to repossess the automobile, would not change the rule of law, for the reason that the contract remained in force and the purchaser's insurable interest was not cut off until appellant had exercised such option and repossessed the automobile. Upon the above authorities, we conclude that appellant was not entitled to the insurance money collected by the vendee.
We find no reversible error.
Judgment affirmed.