34 Ill. 46 | Ill. | 1864
delivered the opinion of the Court.
This was an action of assumpsit originally commenced by Mrs. Frances W. Smith, who, during the progress of the suit, intermarried with Robert Hervey, the plaintiff, and against the Peoria Marine and Fire Insurance Company. A verdict was rendered for the plaintiff, a motion for a new. trial overruled, and the case brought here by a writ of error on the bill of exceptions. The declaration contained three counts; the first, after reciting the issuing of an insurance policy by the defendant to one Bishop, the terms thereof, &c., goes on to allege that Bishop, being sole owner of the property insured, on the 22d of October, 1859, sold and delivered the insured property to the plaintiff (then Mrs. Smith), and that on. that day, Bishop, with the consent of the defendants, manifested and expressed by their indorsement on the policy, assigned the same to the plaintiff. It is then averred, that on the 22d Oct., 1859, the defendants executed a renewal certificate in writing, and delivered it to the plaintiff, and that in consideration of the sum of forty-five dollars paid by plaintiff as premium to the defendants at their request, and of the undertaking and promises by the plaintiff to perform and fulfill all things contained in the policy to Bishop, on her part to be performed, &e., the defendants undertook and promised the plaintiff to consent to a continuance of the risk originally- insured from October 22d, 1859, to October, 1860, and to become and be insurers to the plaintiff of the sum mentioned in said policy upon the property, and to fulfill all things mentioned in the policy, on the part of the company to be performed and fulfilled ; it then avers that the defendant became and was .insurer to the plaintiff, and by its president and secretary subscribed the renewal certificate as such insurer upon the property. It is then alleged that the plaintiff remained owner until the loss by fire during the continuance of the term of the risk, and notice to the defendant. The delivery by plaintiff to the defendant, on the 14th September, 1860, of her amount of loss, properly verified, is also alleged, and also the delivery of the certificate of the notary, as to his examination into the circumstances of the loss, and the amount thereof. The second count sets out the making of a certain instrument in writing and agreement by defendants with the plaintiff, known«as a policy' of insurance, and delivered the same to plaintiff on October 22, 1859, and avers that in consideration of the payment by plaintiff, at the request of the defendants, and to defendants of forty-five dollars as a premium for insurance of eleven hundred and twenty-five dollars on a stock of drugs and other property mentioned, and the undertaking and promising by plaintiff as in first count, the defendant undertook and promised plaintiff to become and be insurer to her of that sum upon the stock mentioned for one year, &c., and then avers as in the first count.
The third count sets out the making by the defendant, on the 22d October, 1859, of a certain agreement with the plaintiff and that, in consideration that the plaintiff had paid premium for insurance and had undertaken and promised to perform and fulfill the agreement on her part, the defendants undertook and promised to become and be, and became and were, the insurers to the plaintiff upon the property mentioned for the term of one year from October 22,1859, and avers a promise on the part of the defendants to perform and fulfill all things in the agreement on its part, it then avers sole ownership up to the time of the loss by fire on the 19th of August, 1860, and avers the delivery of the preliminary proofs, &e.
The common counts were added, and the breach assigned in the usual form.
The appellants make several points against the right of the-plaintiff to recover in this form of action.
He contends that the policy of insurance issued to Bishop, is the only contract of insurance in the case, and that the plaintiffs cannot maintain an action on it in their own names, as assignees of Bishop; that a fire insurance policy is not assignable so as to enable the assignee to bring suit upon it in his own name.
The last proposition is admitted but the first cannot be admitted. This action is not brought, nor does it profess to be brought on the policy issued to Bishop. That policy is referred to in the first count, as inducement, merely, to the contract, alleged to have been made with the plaintiff as set out in the third count; it is in no sense the ground of the action. The third count sets out simply, an agreement with the plaintiff on a sufficient consideration, to do certain acts. If the action was on the policy issued to Bishop, the authorities cited by the appellants would be decisive, as that was under seal, and this action is in assumpsit.
The question before us, is correctly put by the counsel for the appellee : can the plaintiff recover of this insurance company in her own name, the amount of damages which they, as an insurance company, undertook and promised to pay her, incase the property insured, ivas destroyed by fire? Did the company enter into such a contract, on a valuable consideration, with the plaintiff? The fact that they had, the year previous, insured the property for Bishop and that he assigned the policy to the plaintiff, does not, we think, affect, one way or the other, the real question stated above, and presented by this record. The plaintiff paid her money on the promise of the company to keep the property insured for one year, and gave a receipt therefor. That receipt is as follows :
Policy Ho. 723. Renewal Ho. 1,721.
By this certificate the Peoria Marine and Fire Insurance Company, in consideration of forty-five dollars to them paid by the holders of policy Ho. 723, the receipt whereof is hereby acknowledged, do hereby consent to the continuance of the risk originally issued in policy Ho. 723, from the twenty-second day of October, 1859, to the twenty-second day of October, 1860; the original application to remain in full force and virtue.
The meaning of this writing is quite obvious. It acknowledges there is a holder of policy Ho. 723, who might be a person other than Bishop; that a risk had been theretofore taken on the property in question, and declares, by the words, “ the original application under which the risk was originally taken, to remain in full force and virtue,” that the then holders of the policy need not make any new or additional application to the company for insurance, but the company would consider it as made by him who paid the money, and as on the terms of the original application. It amounts simply to this: that on the plaintiff going to the insurance company with the policy issued to Bishop in her possession, of which she was then the holder, on seeing it, the defendants, by their agent, say to her that she need not make a new application for insurance; that they would continue the risk for her benefit one year, on the payment by her of forty-five dollars. That had no effect upon the written policy of Bishop to continue it alive or to revive it, being dead, but it was a new contract with the plaintiff for a valuable consideration paid, and on the terms of the original policy.
How, admitting that the assignee could not sue upon the policy if assigned, still, on the general principles of the common law, this being a new contract with the plaintiff she could sue upon it in her own name.
If a person executes his note to another, which is not negotiable, and had been assigned in fact to a third party, and is held by him, and the maker promises and agrees with such party to pay the note to him, what principle of law is there to prevent a recovery by suit in his own name, and show the note and prove the facts which were the inducement to the promise ? We know of none. This doctrine has been recognized in several cases. In Mowry v. Todd, 12 Mass. 288, it was held, Parker, Ch. J., delivering the opinion, that if the principal contract which is declared upon, was duly assigned to the plaintiff so as to give him the equitable interest and entitle him to an action in the name of Fisher (the payee), we have little doubt that an express promise made to him by the defendant, gives him a right of action in his own name upon that promise. The court say, whatever may be the effect of handing over a written contract to a party to whom it is intended to be transferred without a recognition of the transfer by the person bound by the contract, and a promise to pay the contents to the holder, we are satisfied that with such recognition and promise the assignment is sufficient without the name of the assignor. It amounts to the substitution of one creditor for another, by the two creditors and the debtor; and an action may be maintained by such assignee in his own name, founded on the assignment and the express promise of the debtor to pay him.
The only question of difficulty the court found in this case was, whether the contract or undertaking of Todd, the maker of the note, to the payee, Fisher, was duly assigned to Mowry, the plaintiff. It appeared clearly to have been the intention to assign it; a valuable consideration was paid, and the written evidence of the contract was delivered over to the plaintiff, but Fisher had not signed his name on the back, although words of transfer were written for the purpose of having his signature, and the omission was accidental, and not by design.
In principle, it is precisely analogous to this case in many respects ; this case being stronger, because Bishop had actually assigned the policy, with the consent of the defendant, the ratification thereof not being indorsed, by accident and not by design.
In support of the doctrine, reference is made to Fenner v. Meares, 2 Wm. Bl. 1269. This was a case in assumpsit, for money had and received, brought by the assignee of a respondentia bond, the obligor therein having, beforehand, engaged, by an indorsement, to pay the same to the assignee. Though this decision was questioned by Lord Kenton, and Lord Ellenbobough said he had read it twice and must read it again before he assented to it, we cannot find that it has ever been overruled.
In Smith v. Berry, 18 Maine, 122, the court held that where a note, not negotiable, was assigned to a third party, such party might maintain an action in his own name, on the express promise of the maker to pay him the note.
To the same effect is the case of Warren v. Wheeler, 21 id. 484.
In Hodges v. Eastman, 12 Verm. 358, it was held that the assignee of a note not negotiable, may maintain an action in his own name when the assignment is for a valuable consideration, and where the debtor promises to pay the assignee.
In Blanchard v. Waite, 28 Maine, it was held, in an action of assumpsit on a contract of insurance, that such contract is completed when there is an assent to the terms of it by the parties, upon a valuable consideration. See, also, to the same effect, Scott v. Lancaster, 3 Harris and Johns. 441; Barger, Ex'r, v. Collins, 7 id. 213; Matthews v. Houghton, 11 Maine, 377.
Other cases to the same effect might be cited, but it is unnecessary; the principle is too obvious for argument or illustration. The action is brought on the new agreement and promise, which having been made for a valuable consideration paid, is binding on the defendants and can be enforced. The original policy has been assigned, and with the consent of the defendants; and out of that assignment and the payment of forty-five dollars as premium, originated the promise to continue the risk, one year, and incorporated into it, by reference, all the stipulations and conditions of the original policy, as if they had been formally set forth and repeated. Ford v. Canfield, 6 Halstead, 327.
The case of Flanagan v. Camden Mutual Insurance Co., 1 Dutcher (N. J.), 506, is much in point. There it ivas held, that at common law, an action will not lie on a policy of insurance in the name of the assignee; but if, upon a transfer of the premises insured, the policy is assigned to the purchaser and assented to by the insurer, it constitutes a new and original promise to the assignee, upon which an action may be maintained in his own name.
.The same doctrine was held in Wilson v. Hill, 3 Metc. (Mass.), 69, and in Jessel v. Williamsburg Insurance Co., 3 Hill (N. Y.), 88; Benjamin v. Saratoga Mutual Fire Ins. Co., 17 N. Y. 415, if there was an express promise by the insurer to pay the assignee in case of loss. See also, Wood v. Rutland and Addison Fire Ins. Co., 31 Verm. 552.
On principle and authority, we think the action is well brought in the name of the assignee to whom the promise was made.
It is said by appellant', that this case is like that of Herron v. this same Company, 28 Ill. 236, where this court held that the renewal receipt in that case did not make a new contract of insurance, and that an action for a loss should be brought on the original policy. That was a case in which the plaintiff was the original party to the policy, and the renewal receipt to him made no new contract with him, he then being the owner of the property insured.
The reference by appellant to 2 American Leading Cases, 432, to establish the principle that the assignment of the policy does not appear to operate as a new promise founded upon the former consideration, is all very well, but when it is founded upon a new consideration moving from the assignee, the case is very different, as is seen by the authorities cited.
We are well satisfied the recovery was proper in this action, and accordingly affirm the judgment.
Judgment affirmed.
