71 N.J.L. 175 | N.J. | 1904
The opinion of the court was delivered by
This is an appeal from a judgment of the District Court of the city of Camden. The appellant, who was plaintiff below, is the receiver of the Anderson Food Company. The suit was- brought to recover from the defendant company $317.80, the return premium upon a policy of insurance upon the plant of the insured, issued by the latter to the Anderson company. Upon the insolvency of the latter the defendant company canceled the policy and thereupon, according to the terms of the policy, the premium paid became due and payable to the insured, subject to a pro rata reduction for the time the policy had run. The defence was, in brief, that the defendant had already paid the unearned premium to the firm of D. A. Henderson & Company, insurance brokers of Camden, who produced the policy for cancellation and who claimed the return premium under and by virtue of a contract with the Anderson company, to be hereafter stated.. The trial resulted in a verdict for the defendant. A reversal of the judgment is asked (1) because of the refusal of the trial judge to overrule the defence and direct a verdict for the plaintiff; (2) for permitting the introduction of testimony in support of the alleged defence.
The contract upon which the defence was based arose in
Upon the insolvency of the Anderson company being decreed the insurance companies canceled the policies in question, paying to the Henderson firm, upon their production and surrender of the policies, the amount of the unearned portion of the premiums.
It was also contended that the insurer was no party to the agreement in question, and that hence it could not be binding upon the defendant, and that if the Henderson firm could not recover from the insurer in pursuance of it, neither could the defendant justify a pajunent to the Henderson firm under it.
We think there is a fallacy in this reasoning that to some extent grows out of a misconception of fact as well as law. The agreement did not attempt to fasten upon the policy any new or different contract between the parties thereto, hence the proof thereof by parol was not objectionable from that standpoint. It was a dealing by the insured with the unearned premium that might thereafter accrue under the terms of the policy, in case of cancellation, by pledging the same to another to secure the repayment to him of moneys advanced by the latter to pay the premium thereon. The agreement was made upon a valid consideration and included not only the retaining and holding of the policy in pledge as security, but the right and authority to collect and receive the unearned premium, in case of cancellation, for the purpose stated.
It is unnecessary to determine whether the transaction in question operated as an assignment of the policy, and that meed not be decided. An assignment of a chose in action, •under our statute (Pamph. L. 1903, p. 540, § 19), need not bo made in writing; it may be made by mere delivery for
The result is that the judgment below must be affirmed, with costs.