8 Kan. App. 798 | Kan. Ct. App. | 1899
The opinion of the court was delivered by
In this action, the defendant in’error obtained a judgment and verdict against the plaintiff in error in the sum of $1133.83, the face value of an insurance policy, the interest thereon, and a further judgment for.ninety dollars, as an attorney’s fee. The-case was tried in Anderson county on a change of venue. It appears that in March, 1893, Johnson
“ To Angelí Mathewson & Co., Parsons, Kan.: I hereby appoint you my agent and my attorney to negotiate for me a loan of $4500 for five years, with $3300 insurance, and with interest at seven and one-half per cent, per annum, payable semi-annually, to be secured by mortgage or mortgages, of form required by you, upon the following real estate situate in Wood-son county, Kansas.”
The contract and application were forwarded by Browning to Mathewson & Co., who accepted the same and prepared a mortgage accordingly, which was, on the 18th day of April, thereafter, executed and acknowledged by Shults and wife before Browning, as a notary public. The mortgage was for $4500, and the Mutual Benefit Life Insurance Company was the grantee therein. The instrument was filed for record on the day of its execution, and on June 16 the grantee therein duly executed a release, which was filed for record on the 4th day of the following August.
The mortgage contained a clause whereby the mortgagors agreed to procure and maintain insurance on the buildings upon the mortgaged premises to the extent of $3300, with the loss, if any, payable to the
Early in the morning of Sunday, June 4, the barn was struck by lightning and totally destroyed. On the next day Browning purported to cancel the policy. On June 5, Shults learned that his barn had been burned, and the next day called on Browning to inquire regarding the insurance. Then, for the first time, he was informed as to the action of the company and of Browning in respect to the cancelation of the policy. The return premium was not paid over to Shults prior to the trial of the action. Johnson Broth
Counsel for plaintiff in error make the following claim in their brief :
• “ (1) The policy never became a binding obligation of the insurance company, for the reason that, when countersigned by Browning and delivered to Angelí Mathewson & Co., he was acting for and in the interest of Shults, and not as the agent of the insurance company; and, (2) if issued by Browning, as agent of the company, in the usual course of his employment, it became inoperative at the expiration of five days from the receipt of notice of cancelation by Angelí Mathewson & Co.”
In considering this claim, it is important to note that the insurance policy under which Shults recovered judgment was issued after the execution and delivery of the mortgage, and that the mortgage itsblf covered the whole matter of the insurance to be maintained. It thus appears that the clause in the loan contract concerning insurance had wholly lost its force, and that the agency on the part of Mathewson & Co. in respect to insurance, if such agency ever existed, was revoked and at an end. After the mortgage was executed and delivered, service of notice of the cancelation of the insurance policy on Mathewson & Co. did not bind Shults.
As the firm of Johnson Brothers & Browning were merely soliciting agents for Mathewson & Co. in respect to the Shults loan, their agency was wholly at an end with the completion of the loan transaction, and Browning was in nowise agent of Shults at the time the insurance policy in question was written. “ The appointment of one as agent to procure insur
The allowance of an attorney’s fee was proper. (Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Insurance Co. v. Bayha, ante, p. 165, 55 Pac. 474.) The judgment of the district court is affirmed.