199 Mo. App. 536 | Mo. Ct. App. | 1918
This is an action upon a policy of fire insurance. The case was tried before the court without the intervention of a jury. The case was submitted upon the testimony adduced for the plaintiffs, the defendant offéring no evidence. From a judgment in favor of the defendant and against the plaintiffs, plaintiffs bring this appeal.
The evidence shows that plaintiff Elizabeth Laufer was the owner of certain improved real estate upon which the defendant company had issued a policy of fire insurance in the sum of $1500. Under the terms of the policy the “loss, if any, (was) payable to R. IT.
Some months prior to the talcing out of the policy in question Mrs. Laufer and her husband had borrowed $1750 from the said B. C. Stevens, Sr., and had executed their note therefor secured by a deed of trust on the insured property in which E. H. Stevens was 'named trustee.
During the life of the policy the insured building was totally destroyed by fire. Prior to the date of the fire it appears that B. C. Stevens, Sr., had sold the $1750 Laufer note to the plaintiff, E. H. Beclcman, and had delivered to Beckman the deed of trust and the insurance policy, together with the principal note and interest notes attached thereto. Immediately after the' fire B. C. Stevens, Sr., went to Beckman and told him that the property in question had been sold and he would have to have the insurance policy to make the necessary change. The policy having thus been obtained, B. C. Stevens, Sr., saw to it that the necessary proof of loss was made and in due course a draft was issued by the" defendant company for $1500 made payable to Elizabeth Laufer and E. H. Stevens, trustee. This draft was delivered to Mrs. Laufer by the adjusters for the defendant company in the city of St. Louis. According to Mrs. Laufer’s testimony she immediately took the draft to the office of B. C. Stevens, Sr.,, where she endorsed the draft and turned it over to B. C. Stevens, Jr., who in the absence of B. C. Stevens, Sr., conducted his business for him. According to her testimony “I left the draft there with B.. C. Stevens, Jr., to be delivered to E. H. ^tevens.”
The evidence further shows that B. C. Stevens, Jr., took the draft over to the office of K. H. Stevens, trustee, where in the absence of E. H. Stevens, Sr., his son,
At the close of plaintiffs’ case the following declarations of law were given by the court at the request of defendant:
“The court declares the law to be that under the pleadings and evidence the plaintiffs are not entitled to recover and the findings of the court must be for the defendant.”
“The court declares the law to be that if the court finds and believes from the evidence that the draft read in evidence was endorsed by R. II. Stevens, trustee, or by some one for him and by his direction or with his knowledge, consent and approval, and that said draft was also endorsed by Elizabeth Laufer and was after-wards paid by defendant, then the plaintiffs are not entitled to recover and the court should find for the defendant.”
The court thereupon entered its finding and judgment in favor of defendant.
Appellants’ first point is that R. II. Stevens, trustee, could not .under the law delegate to his son or to any other person, power or authority to act for him under this deed of trust, or to act for him in the handling of this trust .fund. The respondent does not dispute the proposition that a trustee cannot delegate his power to make the sale because that act requires the exercise of judgment and discretions, but argues that the endorsing of the trustee’s name, as in the instant case, to the draft by the son of the trustee was but a mere mechani
This view of the respondent we cannot subscribe to. When the draft which was made payable to Mrs, Elizabeth Laufer and R. H. Stevens, trustee, having been endorsed by Mrs. Laufer, was presented to the trustee for his endorsement it became his duty to see to it before surrendering the draft with his signature attached thereto, that a credit of a partial payment in an amount equal to the draft had been endorsed on the principal note secured by the deed of trust on the property which was covered by the policy. This we hold was no mere ministerial duty. It was clearly a matter of judgment and discretion to be exercised by the trustee, an act which was therefore nondelegable. While of course the mere physical act of writing the words “R. H. Stevens, trustee,” on the back of the draft we concede is a purely ministerial act in itself, yet the determining whether or not the draft should be endorsed, and when and to whom, if endorsed, the same should be • delivered, and under what circumstances, is a matter that calls for judgment on the part of the trustee. This the very facts before us themselves show, for how else could this case have arisen excepting that the trustee himself has not endorsed the draft, but an attempted endorsement of 'the draft was made by the son of the trustee who relying upon his own judgment appended the endorsement of the trustee thereto, and this too without obtaining the possession of the draft itself, or taking any steps to see that the funds reached the hands of the party in interest, who in the instant case was the plaintiff, Beckman,
Respondent lays great stress upon the fact that R. H. Stevens, trustee, with reference to the appending of his name as for his endorsement as trustee to the draft by his son, testified, “my son has a right to sign my name to anything that he chooses that can be signed without written authority and he signed this in my absence and I recognize it as my signature, as my endorsement.” Respondent argues that even though R. H. Stevens, trustee, was out of the city on the occasion when the draft was presented to his son, and though he, the said trustee, therefore did not know anything of the presenting of the draft for such purposes, and did not
The fact that the draft was delivered to Elizabeth Laufer and that she endorsed it and immediately turned it over to B. C. Stevens, Jr., as the agent of B. C. Stevens, Sr., for the purposes of delivering it to R. H. Stevens, trustee, cannot be held to have been payment of the claim. To the very draft in question was appended: “ Received of B. C. Stevens a sight draft on the Home Insurance Company, New York, for the sum of $1500 which when paid will be in full of all claims and demands for loss and damage by fire. . . .” (Italics ours). The record is clear that the proceeds of the draft were never paid, to Mrs. Laufer and inasmuch as the draft never bore the signature of nor was paid to the trustee, it follows plaintiffs made out a prima-facie ease that the defendant has not paid the claim arising under the plaintiff’s policy of insurance.
It necessarily follows that the giving of that declaration of law, which in fact was equivalent to an instruction in favor of the defendant, was error. The judgment is reversed and the cause remanded.