Strоng presentations of both sides of this cause have assisted us. We shall not go into the inquiry whether error was committed in refusing the appellant the right to a jury trial, as the conclusion we have reached about the case rendеrs the consideration of that point unnecessary. If the court was wrong in holding that the equitable defense pleaded in the answer, and the affirmative relief prayed in connection therewith made the whole case onе for equitable cognizance, it was an error the respondent invited and it can not complain, therefore, if we dispose of the appeal on the same theory. Hill v. Drug Co.,
While we regret to differ from the chancellor who tried the controvеrsy below, about the effect of the evidence, an attentive reading of the record has failed to produce an impression of
On the other hand, the version given by Day places the insurance company in a bad light. He knew Mrs. Vining was dead; his testimony is that Charles said the heirs wanted to turn the property over to Lotta. Thereupon the agency kept the policy until the next day, made the foregoing indorsement on it and delivered it to Charles Vining as being a good contract оf insurance. But these experienced insurance men must have known and must be held to have known that if Mrs. Vining owned the property, as they claim they believed she did, the other heirs could not by their act vest title to- it in the plaintiff until the estatе had been administered. This would look too much like an attempt on the part of the insurance company to continue the policy so that there would be no risk thereafter, as there had been none before. The other view comported with good faith on the' part of all concerned and will be adopted. The weight of the evidence, too, seems to be with the appellant in regard to the transactions. She and her brother both tеstify
It is urged that the original policy being void in the hands of Mrs. Yining, because she had no insurable interest in the property, the indorsement- was likewise void. This position is untenable. Numerous authorities are cited by the respondent to support it, but thеy are all cases in which the policies were assigned by the assured in whose hands they were void from the first. This action is not on assigned policy. An assignee takes no better title and no more interest than was held by his assignor. If the poliсy was void when issued it would be void, of course, when assigned, even though the company assented to the assignment. This would necessarily be true, because the transaction would be simply a transfer of the original contract. If the original contract was a nullity, only a nullity would be transferred. Froehly v. Insurance Co.,
But this defendant undoubtedly had the right to make a valid contract of insurance with Lotta A. Yining, which right would not be affected by the fact that it had previously made a void one with her mother. It might also adopt as part of the contract with the plaintiff, stipulations and provisions in the
It is insisted that as a new contract, the transaction of June 14 must fail, because there was no consideration to support it. We accede to the proposition that there must have been an independent consideration for an agreement to insure made by the defendant on that day, in order for such agreement to be effective; otherwise it would be a nude pact on which an action would not lie. But we think it is clear there was a sufficient consideration and that both parties recognized that fact. It is conceded the original policy issued to Mrs. Vining was void and also that the premium of thirty dollars had been paid by Charles Vining. It is likewise conceded that no fraud was practiced to obtain that policy, but that it was taken out by Mrs. Vining in her own name by mistake. While the assured can not recover unearned premium on acсount of a void policy if there has been fraud practiced in its procurement, the rule is otherwise where the holder is innocent. If the risk never attached by reason of a mistake, free from any evil practices, the insurеd is entitled to the return of the whole premium, for none of it was earned. May on Insurance (4 Ed.), sec. 568; Ostrander on Insurance, sec. 18; Gray v. Sims,
The plaintiff had the right to recede from the adjustment which had been made. She would have had this right at any time before payment, if the company had intended to pay, and she had it all the more because they did not so intend. The adjustment was an accord but not a satisfaction, which is no defense to an аction. Giboney v. Ins. Co.,
The only remaining point that requires consideration is whether the action was prematurely brought? The basis of this contention is that an appraisement or an effort by the assured to secure ah apprаisement, was a condition precedent to bringing suit on the policy. Generally speaking, this is true, where there is such a provision in the policy. Murphy v. Mercantile Ins. Co.,
The adjuster testified that he refused to pay the plaintiff unless she would get receipts from the other heirs. In fact, he demanded an administration of the estate of her mother and a receipt from the administrator. Moreover, when the com
The testimony shows, in the clearest possible manner, that the damage sustained exceeds the face of the policy. It wаs above two thousand dollars. No evidence was offered by the defendant to rebut this proof, which is satisfactory to our minds. The judgment of the court below will be reversed and the cause remanded with a direction to the trial court to enter judgment for the plaintiff for the sum of two thousand dollars, with interest at the rate of six per cent per annum from a date sixty days after the reception by the defendant company of the proofs of loss which were mailed to it by the plaintiff, and for the costs of the action.