21 Ind. App. 516 | Ind. Ct. App. | 1899
This was an action upon a policy of fire insurance to recover a loss by fire. The jury returñed a general verdict against the company, with answers to interrogatories. It is argued that the verdict of the jury is not sustained by sufficient evidence; that the evidence shows that at the time the policy was issued, there was a chattel mortgage upon the property, which rendered the policy void, under one of the provisions thereof. The policy contained the following provision: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, i:' * * if the subject of insurance be personal property, and be or become encumbered by a chattel mortgage.” It is well settled that an insurance company may insert in its policy the above provisions, and enforce them against a policy holder. Milwaukee, etc., Ins. Co. v. Niewedde, 12 Ind. App. 145, and cases cited.
Prior to the issuing of the policy, Overman had signed and acknowledged a chattel mortgage to one Allan Dillon on the property afterwards insured, and had caused the mortgage to be recorded in the recorder’s office. The mortgage was given to secure a note for $800. But there is no evidence in the record that Overman and Dillon ever agreed that the mortgage should be given, or that Dillon ever requested Overman to give the mortgage; nor is there any evi
It was not necessary that it be shown that Dillon expressly refused to accept the mortgage security. His assent to the contract must be affirmatively shown in some manner before the contract can have any existence. Unless the mortgage was delivered to Dillon, or to some one for his use and benefit, it could not become an effective lien; and as there is some evidence to support the jury’s conclusion, we cannot disturb the finding upon that question. The fact that the mortgage had been placed on record before the issuing of the policy was not notice to the insurance company of the existence of the mortgage. Milwaukee, etc., Ins. Co. v. Niewedde, supra; Shaffer v. Milwaukee, etc., Ins. Co., 17 Ind. App. 204.
A tender of money, to be sufficient, must first be offered to the party entitled to receive it, or to some one authorized to receive it for him, and, if refused, the money must then be paid into court for his use and benefit. Bringing the money into court for the party’s use is not sufficient.
Other errors were assigned, but as they have not been discussed, they are deemed waived. Judgment affirmed.