113 N.W. 1029 | N.D. | 1907
Plaintiffs recovered a- judgment against the defendant on a policy of insurance against loss -by fire. A jury was waived, and the findings of fact are attacked as being against the preponderance of the evidence. A motion for a new trial was made on the sole ground that the findings of fact are not sustained by the evidence, and the motion was denied. The appeal, therefore, presents but one question — that of sufficiency of the evidence to support the findings and to warrant a recovery.
The facts are substantially the following: The policy of insurance on which recovery is sought was issued on December 34, 1903. On this day the plaintiffs were a copartnership and the owners of the stock of goods covered by the policy. The stock of goods was destroyed by fire on August 1, 1904. It is a disputed question whether the plaintiffs were the owners of the stock of store goods on said August 1st. The appellants claim that the property was then owned by a corporation known as the “H. D. Ruettell Company,” to which was issued a certificate of incorporation by the Secretary of State of North Dakota on June 16, 1904. The copartnership was composed of Harry D. Ruettell and William C. Tubbs. These two persons and C. F. Ruettell executed the articles of incorporation on which a certificate of incorporation was issued on June 16th. The capital stock of the corporation was $50,000. Whether any stock was issued seems to be a matter of dispute, but that no stock had been delivered before the fire seems to be established, notwithstanding contradictory statements in the record. Policies issued prior to June 16, 1904, were issued in the name of the partnership. After that date, all policies were issued in the name of the corporation, on the request of H. D. Ruettell, an officer of the corporation. In this case proofs of loss were waived, but proofs of loss under other policies were made by H. D. Ruettell, in.which he stated under oath that the property destroyed was owned by the corporation. There is a conflict in the evidence arising, through
Upon the vital issue whether there had been a transfer of title or possession, all the interested parties testify with positiveness that no transfer was made. There is no evidence that a transfer was actually consummated. The effects of the statements and acts that seemed to indicate a transfer must yield in view of the absence of any showing of actuafl transfer, and in view of the explanations and the positive finding of the trial court that no transfer had been made when the fire occurred,' and that the plaintiffs then had the title and interest and ownership of the property. The record presents a case where it was particularly a question for the trial court to determine the credibilty of the witnesses. That was the only question involved. If the witnesses are to be believed,
It follows that the judgment must be affirmed.