142 Iowa 199 | Iowa | 1909
Being a law case, and having been tried as such to the court without the intervention of a jury, the judgment, like the verdict of a jury, is to be sustained if there is any substantial evidence in its support. In stating the case, that aspect most- favorable to plaintiff must, for the reason above stated, be adopted as a basis for the legal propositions involved. The original policy which was issued to Nash was for the sum of $1,500, and covered a two-story frame shingle and metal roof building and additions thereto, occupied by assured as a hotel, and located in the town of Chelsea. Loss, if any, was made payable to ■ mortgagee as his interest might appear at the time of loss. The policy, among other things, provided that it should be void in the event there be any contract of sale or to sell the subject of insurance or any part thereof, or if the subject of insurance or any part thereof be or become incumbered by mortgage or other lien or be or become liable in any way to any lienholder, or if any
This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company, except the president or secretary in Des Moines, Iowa, shall have power to waive, change or modify any provision or condition of this policy, except such as by the terms of the policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative, except the president or secretary in Des Moines, Iowa, shall have such power, or be deemed or held to have waived, changed or modified such provisions or conditions, and such waiver, if any, shall be written upon or attached' hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.
In his application for insurance Nash stated that the property was incumbered by mortgage in the sum of $1,400, the indebtedness maturing in the year 1909, and that there was $1,500 of insurance on the property. • The policy was issued on this application July 26, 1905, and the loss occurred September 4, 1906. On January 18, 1906, Nash sold and- conveyed the insured property to plaintiff, Padrnos, and he (Padrnos) on the same day executed a mortgage upon the property, to secure $345 of the purchase price. During the negotiations which resulted in the sale of the property, one Sell, who was considering the advisability of buying the mortgage, was desirous, in the event he purchased the same, to have the insurance renewed in favor of plaintiff, and he went to one Stoddard,
Century Fire Insurance Co., Des Moines, Iowa: This entry and indorsement is made and shall be held to be subject to the condition that this policy is now in full force, and that there has been and is now no violation on the part of the assured of any condition or stipulation in said policy, except as fully expressed hereon. Policy No. 20142. Date of Policy July 26, 1905. Location of risk, lots 2 and 3, block 1, Hunter’s Add’n to Chelsea, Iowa. Entry made and agreed to on the 23d day of January, 1906. Name J. W. Nash. This policy is assigned to Jos. L. Padrnos, purchaser. Geo. J. Delmege, Pres.
A copy of plaintiff’s note was also attached to the policy. It reads as follows:
For value received in policy No. 20142, dated on 20th day of January, 1906, issued by the Century Fire Insurance Company, promise to pay to said company at its office in Des Moines, Iowa, the following sums on the dates specified, viz.: $23.75 on the 26th day of July, 1906; $23.75 on the 26th day of July, 1907; $23.75 on the 26th*203 day of July, 1908; $23.75 on the 26th day of July, 1909; $23.75 on the 26th day of July, 1910 — without interest if paid when due. If not paid when due then this note is to bear interest at the rate of six percent per annum from its date, and it is hereby agreed that in the event of 'loss under this policy this note shall become due and payable and shall be deducted from amount of loss, and, further, if the amounts of this note are not paid at maturity, then this policy shall be suspended, and the company shall not be liable for any loss or damage that may occur to the property insured while this note shall be overdue and unpaid, and that the whole amount of premiums shall be considered earned and payable. Jos. C. Padrnos.
It appears that one Prill held the original mortgage, and that Sell purchased the mortgage made by plaintiff to Nash relying upon the statements made by the agent Stoddard as to the insurance.
Appellant’s only response to this is that Stoddard was plaintiff’s agent in obtaining consent to the assignment of the policy, and that in no event should Stoddard’s knowledge of the additional incumbrance be attributed to it. Stoddard was not, as we think, plaintiff’s agent. Nor was he the agent of any one save the defendant. The effect of the transaction was the issuance of a new policy to the
The trial court was right in holding the defendant liable, and its judgment must be, and it is, affirmed.