93 Neb. 446 | Neb. | 1913
This is an action for money had and received. For the term of one year from March 23, 1909, plaintiff insured defendant against loss by fire to the extent of $1,300 on a linotype and $200 on a stereotyping plant, and authorized concurrent insurance, which was written in the Hartford Fire Insurance Company to the extent of $1,000 on the linotype and $200 on the stereotyping plant. The building containing the property was destroyed by fire April 27, 1909. This controversy is narrowed to the insurance on the linotype. Plaintiff’s proportion of the liability, estimated at $889.67, was paid to defendant June 7, 1909, To recover back that sum is the purpose of this suit. In the petition the relief demanded is based on two grounds: (1) Defendant was not the sole owner of the property at the time of the fire, and for that reason was not entitled
The judgment is challenged as being without support in the pleadings and evidence. That plaintiff’s policy was issued, that it was in force when the fire occurred, that the linotype was damaged to some extent, are facts not open to controversy. At the time of the fire defendant, on the record made, was clearly the owner, within the terms of the insurance contract.
The other ground of relief pleaded by plaintiff is unavailing for the following reasons: The evidence shows, without contradiction, that before proof of loss was made an adjuster of plaintiff saw where the linotype stood in the ruins of the consumed building. He had the same opportunity as defendant to determine the nature and extent of the damages. After the terms of the compromise had been agreed upon, the proof of loss was made by defendant in a perfunctory way, without any intention of misleadiug or defrauding the insurer. That the statements therein Avere not relied upon by plaintiff is shown by its own testimony. Plaintiff not only entered into the contract of settlement, but paid the loss. The compromise was pleaded and proved by defendant. In absence of fraud, mistake or duress, it is binding on the parties. Home Fire Ins. Co. v. Bredehoft, 49 Neb. 152; Gandy v. Wiltse, 79 Neb. 280; Slade v. Swedeburg Elevator Co., 39 Neb. 600; Massillon Engine & Thresher Co. v. Prouty, 65 Neb. 496. The truth is that the linotype had been in a
Reversed.