Lee Blakemore, Inc. v. Lewelling

281 F. 952 | 8th Cir. | 1922

SANBORN, Circuit Judge

(after stating the facts as above). It has seemed necessary to a clear understanding of this case that many facts concerning it should be stated, and that the acts and writings of the parties and the course of the litigation should be portrayed, and this has been done in the foregoing statement.

This is not an action at law. It is a suit in equity. Lee Blakemore, Incorporated, the attorney in fact of each of the underwriters, first invoked the action of the court of equity below to relieve it and the underwriters from payment of the loss which Lewelling & Price-Williams sustained by the burning of the property described in the policy to the Box Company, on the ground that the defendants in that bill never made any insurance agreement with the underwriters or with Blakemore, Incorporated, and never were insured; and Blakemore, Incorporated, prayed that the policy to the Box Company and the insurance under it, which Lewelling & Price-Williams claimed, should be adjudged null and void and canceled. Subsequently Blakemore, Incorporated, and the Hettler Lumber Company, a corporation, and one of the underwriters, with leave of the court, filed a substituted complaint for the same relief on the same ground, and Lewelling & Price-Williams answered that complaint and filed a cross-bill under which they claimed and still claim that they were induced by the acts and statements of Blakemore, Incorporated, to believe that they were insured and to deposit $803.75 for such insurance by the underwriters against loss on the same property and on the same terms as the Box Company would have been insured if there had been no change of title or violation of any term of the policy issued to that company before May 31, 1918, when Blakemore, Incorporated, for the underwriters telegraphed that they were assigning the policy to Lewelling & Price-Williams. They also claimed that there was a meeting of minds and agreement of insurance of the nature just stated between Blakemore, Incorporated, attorney in fact for the underwriters, and Lewelling & Price-Williams, on May 31, 1918, when the telegram of that day was received and the Box Company’s check for the $803.75, the premium deposit, was sent to Blakemore, Incorporated, a check which.it received and collected.

The facts in support of the first claim of Lewelling & Price-Williams are not without persuasive force. They undoubtedly satisfied the court below that under them the equity of Lewelling & Price-Williams was superior to that of Lee Blakemore, Incorporated, attorney in fact for the underwriters, and to that of any of the underwriters.

Counsel for the appellants earnestly contend that the decree below should be reversed because Lewelling & Price-Williams never subscribed to the prescribed written agreement and the power of attorney therein. But, in the opinion of the court, it was not indispensable to the creation of an equity superior to that of the appellants, nor to the creation of a contract of insurance, that they should subscribe to this formal power of attorney.

[1] Ño principle of equity rests on a more solid foundation than that one who, by his acts or representations, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist, and the latter, in ignorance of the fact that they do not exist, acts on such a belief so that he will be substantially prejudiced if the former is permitted to deny the existence of such facts, is thereby in equity estopped from interposing such a denial. Independent School District v. Rew, 111 Fed. 1, 6, 49 C. C. A. 198, 55 L. R. A. 364; Given v. Times-Republican Printing Co. et al., 114 Fed. 92, 52 C. C. A. 40; Paxson et al. v. Brown et al., 61 Fed. 874, 881, 10 C. C. A. 135.

[2] Counsel argue that after May 21, 1918, when the foreclosure sale of the insured property was confirmed, the policy issued to the Box Company had become absolutely void by its terms, and that thereafter the insurance under it was not assignable. The provisions of the policy declaring it void in certain contingencies, however, had been inserted in that policy for the sole benefit of the insurer, and although those contingencies had become actualities it seems that the policy was not absolutely void, but that it was only voidable at the option of the insurers, and that, until they exercised the option to declare it void, they might, by act or deed, waive the forfeiture which they had the power to enforce, and continue the policy in force in case the insurable interest in the property and the right to the insurance thereunder were united and caused to exist in the same assured. Westerlund et al. v. Black Bear Mining Co. et al., 203 Fed. 599, 611, 612, 121 C. C. A. 627; United States v. N. Y. & Porto Rico Steamship Co., 239 U. S. 88, 93, 36 Sup. Ct. 41, 60 L. Ed. 161; Stutsman v. Olinda Land Co. (D. C.) 231 Fed. 525, 528; Pollock on Contracts, 9; Toy Toy v. Hopkins, United States Marshal, 212 U. S. 542, 548, 29 Sup. Ct. 416, 53 L. Ed. 644.

[3] However that may be, and even if, after May 21, 1918, the Box Company’s policy was void, so that it had no insurance against loss by fire upon the property described in it, nevertheless the telegrams, letters, and acts of Blakemore, Incorporated, which, as the foregoing statement shows, had plenary authority to make and deliver contracts of insurance, to change, modify, or cancel them, to make representations concerning them, and to do other and different acts regarding them, which each underwriter might do for itself, were well calculated to lead Lewelling & Price-Williams to believe and undoubtedly did lead them to believe that they were insured against loss by fire to the property described in the policy to the Box Company ever after May 31, 1918, and in reliance upon those representations to fail to procure other insurance upon that property. On May 28, 1918, the Box Company and Lewelling & Price-Williams agreed that the policy and insurance the former had had on the property the latter had purchased should be assigned to the former, and that the Box Company for both parties should telegraph to the Underwriters for their consent to the transfer, and the Eox Company did so. On May 31, 1918, the Underwriters, through Blakemore, Incorporated, answered that they were assigning the Box Company policy to Lewelling & Price-Williams and changing the payees in the mortgage clause, as requested by the telegram of the 28th. Thereupon the Box Company on that day sent its check for the premium deposit $803.75 on the policy, which had never been paid, to Blakemore, Incorporated, Lewelling & Price-Williams credited the Box Company with that amount on a debt the Box Company was owing them, and Blakemore, Incorporated, collected the check on June 3, 1918, and retained the proceeds. On June 1, 1918, Blakemore, Incorporated, wrote the Box Company that they were assuming that the Box Company would operate the property, that they would effect the assignment as requested and would appreciate notice of the fact if their understanding was incorrect, and on June 4, 1918, the Box Company advised it that it would continue to operate the property. Blakemore, Incorporated, could have received and kept the $803.75 for nothing, but to secure or pay for the indemnity, the insurance of Lewelling & Price-Williams against loss on the property from fire. These acts, telegrams, and letters leave no substantial doubt that they led Lewelling & Price-Williams to believe that they were insured and to fail to secure insurance elsewhere, for such a belief was the natural and almost inevitable effect of them. Nor is there much doubt that Blakemore, Incorporated, intended that they should have that effect, for it indorsed on the blank assignments which it mailed to the Box Company on July 2, 1918, too late to reach it before the fire, its signed consent to the assignment of the policy, dated May 31,' 1918, the day it telegraphed it was assigning the policy and changing the payees in the mortgage clause. There would be neither equity nor justice in permitting the underwriters and Blakemore, Incorporated, to deny the existence of this indemnity or insurance, which their acts and writings so clearly indicated, and so surely lulled Lewelling & Price-Williams into security and prevented them from obtaining other insurance.

[4] The argument of counsel to the effect that the policy was void on account of the forfeiture resulting from the foreclosure and sale of the property insured, and that therefore neither it nor any insurance under it could be assigned, may be sound to the extent that the owners of the policy could not alone assign any insurance under it, so as to bind the insurers to the assignee; but when the original owner of a policy has assigned it with the consent of the insurer to another, who accepts the assignment, a new and independent contract arises between the insurer and the assignee, which is subject to no forfeiture by reason of the acts or omissions of the party originally insured because by the consent of the insurer to the assignment it has waived such forfeitures as against the assignee, and the latter has and may enforce the new contract. Ellis v. Insurance Co. of North America (C. C.) 32 Fed. 646, 649 ; 2 May on Insurance, 278A; 4 Joyce on Insurance, § 2308; 14 Ruling Case Law, 107.

[5] Nor is the court convinced that a written agreement or power of attorney, signed by Lewelling & Price-Williams, or a written policy signed by Blakemore, Incorporated, was indispensable to the creation of this new contract of insurance by agreement between the Box Company and Lewelling & Price-Williams and the consent of Blakemore, Incorporated, attorney in fact for the underwriters. Such contracts may be made by parol, to be followed by subsequent writings expressing them, and may take effect upon the meeting of the minds of the parties, as it seems to us the minds of the parties in this case did meet on May 31, 1918. Relief Fire Insurance Co. v. Shaw, 94 U. S. 574, 576, 577, 578, 579, 24 L. Ed. 291; Eames v. Home Insurance Co., 94 U. S. 621, 627, 629, 630, 24 L. Ed. 298; Insurance Co. v. Colt, 20 Wall. (87 U. S.) 560, 567, 568, 22 L. Ed. 423.

[6] The contention has not been overlooked that there was no contract between the underwriters and Blakemore, Incorporated, on the one hand, and Lewelling & Price-Williams on the other, and no estoppel in favor of the latter, because Lewelling & Price-Williams did not sign any of the telegrams or letters, nor were any of the letters or telegrams sent to them by name. But the evidence convinces that the Box Company was the agent of Lewelling & Price-Williams to procure for them the new contract of insurance for their benefit throughout the transaction, and that the Underwriters and Blakemore, Incorporated, had ample notice of that fact. The result is that there was no error or mistake in the conclusion of the court below that in equity and good conscience Lewelling & Price-Williams were entitled to recover from the Underwriters and their attorney in fact for the loss they sustained by the burning of the property in controversy.

[7] Another claim of counsel for the insurers is that there can be no decree for the damage sustained by Lewelling & Price-Williams because the property insured consisted of five different lots, each of which was declared in the policy to be insured in a specific amount, and while the parties stipulated that the loss to the property was $24,900 there was no stipulation or proof of the amount of loss upon either of the five lots. But a copy of the proof of loss was in evidence, from which it appears that the specific amounts insured on the first, second, and third lots was $27,500, which was more than the $24,900 recovered, and that nothing was claimed on the other two lots. Moreover, no objection of this nature appears to have been made at the hearing, and there is no doubt that no error or mistake in the amount of the decree prejudicial to the Underwriters or Blakemore, Incorporated, arose in this state of the evidence.

[8] Another position of counsel for the insurers is that the portion of the decree which grants a recovery of $24,900 and interest from the Manufacturing Wood Workers’ Underwriters, is unauthorized and erroneous, because there was and is no such body entity or association suable or subject to the jurisdiction of the court below. It has not been found necessary to discuss or decide the question here suggested in order to determine whether or not Lewelling & Price-Williams shall be paid their loss under this decree, and as the question is claimed to involve the issue whether or not a suit or judgment against such body or association is violative of the Constitution of the United States, we do not consider it or express any opinion upon it. Whether there is or is not such a suable body or association or entity subject to the jurisdiction of the court below or of this court, each of the individuals, firms, and corporations that became an insurer by making a contract of inter-insurance with Blakemore, Incorporated, as attorney in fact for the other insurers, and that remained such at the time when the loss in controversy occurred, was and is by the express terms of the agreement of insurance liable to pay the same proportion of the loss of Lewelling & Price-Williams that his, their, or its premium deposit bore to the aggregate of all the interinsurers’ premium deposits under all the contracts of interinsurance in effect at the time of the loss, and each of these interinsurers was one of the Manufacturing Wood Workers’ Underwriters, and all of them were the Manufacturing Wood Workers’ Underwriters at that time. One of these underwriters, the Hettler Lumber Company, and the attorney in fact of each of them appeared, pleaded, contested, and tried the question of the liability of each of them for this loss, the court necessarily adjudged that the Hettler Lumber Company was liable for its proportion of the loss in reaching its conclusion and decree that Lewelling & Price-Williams should recover from Lee Blakemore, Incorporated, as attorney in fact for the Underwriters, and out of any moneys in its possession as such attorney in fact, the $24,900 interest and costs. Each claim of each of the other underwriters than the Hettler Lumber Company, that he, they, or it is not liable for this loss, is by the express terms of the agreement of insurance adjudged by the adjudication of the claim of the Hettler Lumber Company “as if it had been sole defendant in a similar suit or proceedings as to the similar claim against him.” So it is that the decree below adjudges each underwriter liable for its proportionate share of the loss, and decrees that Blakemore, Incorporated, shall pay the adjudged amount of that loss out of the moneys in his possession as attorney in fact. Blakemore, the president of the attorney in fact, testified “We have more than sufficient funds to meet these risks.” Blakemore, Incorporated, pleaded in its answer to the cross-complaint that it had come into the court below and pleaded, and it proved in that court, that it had filed a bond with a sufficient surety in the amount of $30,000 to assure the payment of any money decreed that should be rendered in this litigation. Therefore the decree below is secured to be and will be paid by Lee Blakemore as attorney in fact, and the Manufacturing Wood Workers’ Underwriters, whether it is or is not a suable association, body, or entity, will be discharged from all liability by the payment of the amounts specified in the decree by the attorney in fact out of the moneys in its possession, and the issue whether or not it is such an association, body, or entity is immaterial in this case.

[9] It is suggested that the decree is erroneous because it does not adjudge the specific amount—that is, the proportionate share—of the principal and interest specified in the decree that each underwriter is liable to pay. But that is certain which may be made certain, and those amounts may be readily determined by computation, and it was unnecessary to state them in the decree. The court is confident that the amount adjudged by the decree will be speedily paid. If it should not be, this is a' suit in equity, and the court below will have ample power subsequently to determine, if necessary, the specific amounts due from each underwriter, and to enforce their payment.

[10] Attention is called by counsel to this provision of the agreement of insurance found in the policy:

“It is understood and agreed that there is assumed by each subscriber, including the assured hereunder, as if a separate policy was issued therefor, a sum which is the same proportion of the aggregate liability hereunder that each subscriber’s premium deposit bears to the aggregate of all the subscribers’ premium deposits under all policies in effect at the time of any loss.”

They complain that under this clause, whereby each subscriber, including the assured, assures his proportion of the loss, the amount specified in the decree should be diminished by the proportion of their loss which Lewelling & Price-Williams assumed. The contract so reads, and the decree should be modified by reducing the amount of the principal and interest specified therein by the proportion thereof that their premium deposit of $803.75 bears to the aggregate of all the underwriters’ premium deposits under all the policies in effect at the time of the loss.

There are other alleged errors and mistakes discussed. All of them have received deliberate consideration, but none of them has been found to be material and prejudicial to the appellants.

Let this case, therefore, be remanded to the court below, with directions to modify its decree by reducing the amount of the principal and interest specified therein by the proportion thereof that the premium deposit $803.75 of Lewelling & Price-Williams bears to the aggregate of all the underwriters’ premium deposits under all the policies in effect at the time of the loss of Lewelling & Price-Williams, and let the decree, so modified, be and it is affirmed, without costs in this court against any of the parties.

HOOK, Circuit Judge, participated in the hearing and conference and concurred in the decision of this case, but died before the opinion was prepared.