83 Iowa 647 | Iowa | 1891
“The court erred * * * in sustaining plaintiff’s objections to the testimony and evidence offered by defendant tending to prove that the premium named in the policy sued on had never been paid by plaintiff, or by anyone else, nor any part thereof, and in refusing to permit defendant to prove that no part of ■said premium had ever been paid; which ruling and proceeding were prejudicial to defendant, and to which ruling and proceeding defendant excepted at the time.”
It is said that this assignment “does not state what .questions were asked, to which the objections made by plaintiff were sustained, nor to what witnesses the questions were put.” In case of an assignment as to the admission or exclusion of evidence, the law does not require that the questions shall be embodied therein. It is not the province of the assignment to contain the part of the record relied upon as showing error, nor is the name of the witness of whom questions are asked material. The error, if any, consists in the exclusion of the evidence offered to establish a material fact in issue. The assignment specifies the fact, and states wherein the court erred, as by refusing evidence proper to sustain such fact. We think the assignment sufficiently specific.
“If you wish to renew at compact rates, you can send renewal to yours truly, and I will remit, and am
“George R. Moore.”
In pursuance of the application the policy was sent from Rockford, Illinois, to George R. Moore, at Oxford Junction, Iowa, with a letter requesting him to remit the amount of the premium due, and the policy was by Moore delivered to the plaintiff company. To sustain the allegation of the answer, that the premium had never been paid, the defendant offered the deposition of one Charles E. Sheldon, who was secretary of the company, in which appears the following question: “State whether or not the premium mentioned in said policy has been paid.” There was an objection to the-question “as being incompetent and immaterial, for the defendant is estopped from denying the receipt of 'the premium as stated in the policy.” The court sustained the objection, and the ruling is made a ground of complaint to us.
As we view the record and the arguments we are-brought fairly to consider the question whether the-defendant company, by issuing the policy as it did,, with an acknowledgment of a receipt of the premium, and a statement therein that the “loss, if any, is payable” to the plaintiff company, estops the defendant, as against the plaintiff, from proving non-payment of' the premium. It will be seen that the policy was not delivered to Moore upon a credit, but that the parties, to the contract of insurance intended it as a cash transaction. Moore agreed to remit the premium on receipt, of the policy, and the policy was sent to him with a. direction to remit. Until the premium was paid there-
The defendant company sent to Moore tbe policy with tbe words therein, “loss, if any, is payable to Union Building Association of Clinton, Iowa, as its interest may appear.” Mr. Flanders, in bis work on fire insurance (page 441), says: “Where' tbe policy provides that tbe loss, if any, is payable to another, to a mortgagee, for example, instead of tbe assured, it is merely a designation of tbe person to whom it is to be paid, and is not an assignment of tbe policy. Hence,, it is tbe damage sustained by tbe party insured, and not by tbe party appointed to receive payment, that is recoverable from tbe insurers. Tbe insurance being upon tbe interest of tbe insured, if be parts with that interest before tbe fire, no loss is sustained by him, and, of course, none is recoverable by bis assignee or appointee. In other words a policy made “payable to A, in case of loss,” is an agreement on tbe part of tbe insurers that “A” shall recover whatever the person originally insured may be entitled to receive in case of loss; that is, it is a contingent order or assignment of what may become due under tbe contract, and not an absolute transfer, by virtue of which tbe assignee acquires tbe full rights of an assignee of a chose in action.” Tbe rule thus stated has tbe support of many well-cónsidered cases. In Continental Ins. Co. v. Hulman, 92 Ill. 154, where this principle in question was involved, tbe language above is quoted, and the court says: “Making tbe loss, if any, payable to Hulman & Cox, mortgagees, was not an insurance of their mortgage interest in tbe property.” Tbe supreme court of Massachusetts has repeatedly held to such a
Believing that this discussion of the case will be a •sufficient guide on another trial other questions need not be considered. The judgment is beyebsed.