104 Wis. 395 | Wis. | 1899
1. That portion of the answer which is designated as a “ cross complaint ” seeks to set up an independent cause of action in favor of the appellant against the insurance companies upon two grounds:
First, as against all the companies, upon the proposition that the so-called “ lumber clause ” results in insurance to whomever may prove to be the owner of any lumber held
Second. Appellant asserts an independent right of action against certain of the defendant companies by virtue of the provision that loss should be payable to it as its interest might appear. It made proofs of loss under those policies, and insists that its right of recovery cannot be prejudiced by any frauds of plaintiffs in their proofs. The rights of a claimant under this familiar clause, where the title and ownership of the property remains in the assured, are no» longer open to doubt or debate in this state. They were settled by Chandos v. Am. F. Ins. Co. 84 Wis. 184; Carberry v. German Ins. Co. 86 Wis. 323; and Williamson v. Mich. F. & M. Ins. Co. 86 Wis. 393. The contract is with the assured,, to him alone is the insurer liable, and upon his acts will that' liability depend. The claimant under such a provision is-not an assignee of the policy so as to hold an independent, right of recovery, but a mere appointee to receive the whole or a part of the money which the assured is entitled to recover, but to receive it under and in the right of the assured. The question whether any, and if so what, interest the ap~
A further claim by appellant, that the' transactions amounted to an insurance to it upon its interest in the contract of purchase of the lumber, taken out by the plaintiffs as its agents' and on its behalf, is not at all borne out. In the first place, no such agency was created by the contract of purchase. That instrument stipulated, not that the plaintiffs should procure insurance for the benefit of appellant upon its interest either in the lumber or in the contract, but should insure the lumber itself, which belonged to plaintiffs themselves. The transactions between plaintiffs and the insurance companies, consistently with that stipulation, show a dealing entirely on their own behalf, and the taking of policies in which they were the payees, and in all of which their relation to the insurance companies was the same as to all lumber in their yard, without distinguishing or differentiating that which appellant had agreed to purchase. All these circumstances exclude the existence of any idea of agency in the minds of either of the contracting parties at the writing of these policies.
"We agree with the conclusion of the circuit court that, under the allegations of the cross-complaint portion of appellant’s answer, the appellant has no independent right of action or recovery against the defendant companies.
2. Turning now to that portion of the appellant’s answer which relates to its claim against such insurance money as may be recovered by the plaintiffs, the appellant’s contention is that the word “interest” in the clause of the contract whereby the plaintiffs agreed' to keep the lumber insured for one year, and policies assigned to appellant as its interest may appear, is to be construed as meaning the loss which would fall oil appellant by destruction of the prop-
There remains one further contention of appellant, which, as it has been fully argued, should receive consideration, namely, that the implication of a condition in the contract for sale of the lumber that performance be excused in the-event of destruction of the specific property is excluded by the agreement to keep the same insured, and that plaintiffs are therefore liable to appellant for breach of such contract in damages equal to the market value, less the unpaid purchase price. Appellant concedes that ordinarily sucha condition is to be implied in executory contracts for sale of specific articles, on the authority of McMillan v. Fox, 90 Wis. 173, and Cook v. McCabe, 53 Wis. 250, but urges that such implication is always subject to the express agreement of the parties that the seller may assume the risk of the continued existence of the property, and that such assumption may be accomplished by such expressions as the “vendor Avarrants or insures ” such continued existence. These propositions may all be conceded, but we are- still confronted
By the Court. — The respective judgments are affirmed. Respondent insurance companies will be allowed to tax in their costs for printing fifty-three pages of the printed case used jointly in this case and No. 59 (Wunderlich v. Palatine F. Ins. Co., ante, p. 382).