36 Mo. App. 128 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This was an action upon a policy of fire insurance. The questions for decision arise upon a special defense set up in the answer as follows: “ Defendant admits its incorporation and authority to do business in this state, as alleged in said petition; admits the execution, delivery, and assignment to plaintiffs of a policy of insurance on a stock of goods for fifteen hundred dollars, concurring insurance, to the amount of twenty-three thousand dollars, being permitted by the terms of said policy. But defendant says that, at the time of the loss and damage to plaintiffs’ stock of merchandise alleged in their petition, the said policy had terminated, was no
No reply seems to have been filed, but the cause was tried as though the special defense set up in the answer had been put in issue by a reply. The trial took place before the court without a jury and resulted in a verdict and judgment for the plaintiffs, from which the defendant prosecutes this appeal.
At the trial the defendant gave evidence tending to establish all the facts set up in its answer. Stated in greater detail than they are stated in the answer, these facts were, that on the fifth of March, 1886, the plaintiff B. T. King, and the plaintiff Oallie E. King, his wife, were conducting a merchandise business in Springfield, Missouri, as partners, under the style of B. T. King & Company; that their stock of goods was at that time insured for twenty-three thousand dollars, in twelve different companies ; that, on the night of March fifth and sixth a portion of their stock was destroyed by fire; that, thereafter, the several companies carrying the insurance upon it sent adjusters to Springfield for the purpose of adjusting and settling the loss; that these adjusters were engaged in this duty for ajbont four days and completed it on the sixteenth of March; that the adjustment was rendered somewhat difficult from the fact that the plaintiffs’ ledger was lost and could not be found or produced ; that this circumstance rendered an accurate adjustment impossible, but did not prevent approximate adjustment ; that the source of the fire could not be ascertained; that some of the adjusting agents were not satisfied — or at least had suspicions — in regard to the honesty of the loss ; that the adjusting agents took the position that their respective companies had, under the present law, sixty days in which to pay their respective proportions of the loss, but that they
The .evidence further showed without controversy that immediately after the adjustment of the loss as above stated on March 16, the plaintiffs took out new insurance on what remained of their stock in four different companies to the extent of ten thousand dollars. The plaintiffs gave evidence tending to show that one of their reasons for doing this was that they were about to purchase an additional stock of five thousand dollars’ worth in St. Louis. In this state of things, with this new insurance to the extent of ten thousand dollars in force, a second loss occurred on the nineteenth day of March, 1886, the day before the above recited instrument was signed and delivered and the money received by the plaintiffs from the defendant on account of the first loss.
The plaintiff, B. T. King, testifying as a witness, stated the consideration of the settlement of the first loss with the various insurance companies in the following language: “That discount (of two per cent.) was given to take up their policies. They claimed that, under the new insurance law, they had sixty days to pay or settle ; and I said if they would take up their policies, I would discount two per cent., instead of holding the money sixty days. I wanted to get to work and move again. This receipt I gave (referring to the paper above set out) was for the money agreed upon as their proportion of the loss at the time of the first adjustment.” And further on Mr. King stated the consideration of the agreement thus : “ Q. Didn’t you agree to surrender your policies in order to get your money without controversy? A. There was nothing said about policies. I agreed to surrender them for the money. (By the court.) Q. Was anything said about controversy, or was it a separate deal ? A. It was to close up the thing, get the money and get to
There was also evidence showing, without dispute, that the four companies who had written the new insurance had paid to the partners their proportion of the new loss as equalized between themselves and the old ■companies whose policies were still in the plaintiffs’ hands at the time of the second loss, upon a written ■stipulation that the plaintiffs should prosecute suits •against these old companies to recover in respect of the ■second loss. The plaintiffs gave evidence tending to show that they submitted to this exaction of the companies who had written the new policies in order to get as much money as they could, accruing in respect of the second loss. There was also evidence tending to show that suits were pending by the plaintiffs against the companies which had written this new insurance, to recover for the full amount of the second loss, on the theory that such comp anies were alone liable for it.
The theory upon which the plaintiffs prosecute this suit is that the agreement made between the plaintiffs and the defendant, throu gh its adjusting agent, on the sixteenth day ■ of March, whereby the first loss was adjusted, the proportionate share of the defendant to be paid in cash without the delay of the sixty days, which the defendant claime d it was entitled to un der the law, less the discount of two per cent., with the further condition that the policy under which the loss accrued should be delivered up to the defendant and cancelled, — was an executory agreement merely, and was not operative so as to discontinue the policy under which the loss was adjusted until the money which the defendant had
On the other hand, the theory of the defendant was that, by the terms of the settlement, the liability of all the companies on the policies was presently to terminate, that is, on the date of the settlement, which was on March 16, before the second fire; that this was a compromise agreement, and hence supported by the consideration which always supports an agreement compromising doubtful claims; and that, whether it was a compromise agreement or not, it was supported by the consideration of an immediate cash payment instead of a delay of sixty days. It will be perceived that the view that the agreement was supported by the consideration last named is deducible from the testimony of the plaintiff B. T. 'King, above quoted.
There was, then, no doubt whatever, — no question in issue, — as to the validity of this settlement of the first loss, so far as a consideration was necessary to give it validity. The only question in issue was the question of the terms or meaning of the contract itself,— whether it meant that the liability of all the companies, including not only those whose agents delivered checks
Compromises are favored in law. They tend to diminish litigation and promote the repose of society. Compromise agreements are upheld where the parties fairly suppose that their rights are doubtful, whether they be so or not, and although it should afterwards turn out that one of the parties had no right in law. Reilly v. Chouquette, 18 Mo. 220. So strongly does the law favor such agreements that if a judgment is fraudulently obtained in violation of such an agreement, a title acquired thereunder by -the plaintiff in the suit, or by any one having notice of the injustice practiced in obtaining the judgment, will be set aside in equity. Murphy v. Smith, 86 Mo. 336. The policy of upholding compromises, when fairly made, rests upon the same grounds as those which support a stated account and gives validity to them, in all cases, unless overthrown for fraud or mistake. Pickel v. Chamber of Commerce, 10 Mo. App. 191; s. c., affirmed, 80 Mo. 65; St. Louis Gas Light Co. v. St. Louis, 11 Mo. App. 73. Indeed, it may be said of the attitude of the plaintiffs, as was said of that of that of the defendant in an early case in
The instructions given and refused show that the circuit court tried the case upon views of law quite at variance with those which we take of the case. Two carefully drawn instructions (numbered three and four), asked by the defendant on the theory of a compromise settlement, were refused. The court also refused an instruction tendered by the defendant on the theory that the payment of the $717.40, having been made under a compromise settlement, the plaintiffs could not, without restoring what had been so paid to them, repudiate the settlement and bring an action on the policy which had been surrendered in pursuance of it. We take it to be elementary that the money having been received under this agreement and not otherwise as all the evidence tends to show, the plaintiffs could not, on any theory, disaffirm the agreement and bring an action on the policy for the second loss, without surrendering up the money received under the agreement and putting the defendant in statu quo.
But it is not necessary to pass in detail upon the instructions. In the view we take of the case, upon the undisputed facts, the defendant was entitled to the instruction which it requested, that the plaintiff could not recover. The judgment will be reversed but the cause will not be remanded.