177 Mo. App. 339 | Mo. Ct. App. | 1914
Action in equity to cancel assignments of a life insurance policy issued November 11, 1891, by defendant insurance company to plaintiff and payable to his wife in the event of his death. In 1907, plaintiff and his wife were divorced and in a settlement of property rights she assigned her interest as
In answer to a newspaper advertisement plaintiff called on defendant Jordan and tbe interview ended in an agreement for them to become partners in tbe business of raising poultry. Jordan was not acting in good faith but made false and fraudulent representations for the purpose of defrauding plaintiff. When be learned that plaintiff bad no ready money but owned a policy that could be converted into cash in a month and bad an ascertained value of $1289, be offered to buy tbe policy for that sum and to pay tbe purchase price by applying $800' to tbe payment of plaintiff’s contribution to tbe capital of tbe partnership and paying tbe remainder of' $489 to plaintiff in money. The offer was accepted by plaintiff and on October 9, 1911, be delivered tbe policy to Jordan and executed and acknowledged a written assignment thereof to him. A plausible excuse enabled Jordan to procure tbe consent of plaintiff to wait a week for bis cash payment of $489. Jordan employed this period of grace in a successful effort to effect a resale of tbe policy. In a way not now important, be was brought into negotiations with defendant Bain who bad money and was willing to buy tbe policy at a profitable discount provided everything was found to be all right. He examined tbe policy and tbe assignment from plaintiff and consulted tbe agent of the insurance company. Convinced by these sources of information that tbe policy could be converted into $1289 on November 11th, following, and being advised that a regularly executed assignment of it for a valuable consideration would be
The charge in the petition is that Jordan and Bain
Our examination of the record convinces us that the court correctly solved the issues of fact. Without going into the details of the evidence or mentioning any but the controlling facts, we find that plaintiff and Bain were the victims of the duplicity of Jordan who, from the beginning, was actuated by the intent to procure and convert to his own use the proceeds of plaintiff’s policy which, for all the purposes of the case, as presented to us, may be treated as an absolute obligation of the insurance company to pay plaintiff $1289 on November 11, 1911.
It is apparent, and is conceded by both parties, that neither Jordan nor Bain had an insurable interest in the life of plaintiff and the rule is of general acceptation that an assignment of a life policy to one who has no insurable interest in the life assured, is void as falling within the rule against wagering policies. [Heusner v. Insurance Co., 47 Mo. App. l. c. 343, and authorities cited.]
Aside from this restriction, obviously founded on sound considerations of public policy which recoil at the idea that one may enter into a wagering contract on the life of another, a life policy is assignable as any other chose, in action, and may be lawfully assigned as security for an indebtedness of the assured, though the creditor has no insurable interest in his life.
We are willing to concede for argument the soundness of the position of counsel for defendant Bain that the transaction in question was devoid of any wager
Counsel for Bain seek advantage from the rule “that when one of two innocent parties must suffer for the wrongful act of another, the one who puts the party in the position to do it must be the sufferer.” [Neuhoff v. O’Reilly, 93 Mo. 164; Hayner v. Crow, 79 Mo. 293; Turney v. Hoyle, 95 Mo. l. c. 245; International Bank v. German Bank, 71 Mo. 183; Clifford Banking Co. v. Donovan C. Co., 195 Mo. 283; Prather v. Hairgrove, 214 Mo. l. c. 159; Strode v. Abbott, 102 Mo. App. 169.]
It was said in the case from which the rule is quoted that if the owner of a non-negotiable instrument clothes another with the usual evidence of ownership and a third person is led thereby into dealing with such transferee as the true owner, he must be protected on the ground that the original assignor is estopped from disputing “the existence of the title or power which through negligence or mistaken confidence he caused or allowed to be vested in the party making the conveyance.”
. But in the present case there exists an element wanting in transfers of other lands of non-negotiable instruments which precludes Bain from yoking himself with plaintiff as the passive one of two innocent sufferers from the wrongful act of another. Not only was the policy non-negotiable but on its face the assignment to Jordan being made to one' who had no-insurable interest in the life of plaintiff was prima
The judgment is reversed and the cause remanded.