J. B. Ehrsam Machine Co. v. Phenix Insurance , 43 Neb. 554 ( 1895 )

Ryan, C.

On the 11th day of April, 1889, the J. B. Ehrsam Machine Company agreed to sell to the Eagle Milling Company, of Franklin county, Nebraska, certain machinery for use in its grist mill. Payments were to be made as follows: $150 in cash, of which the receipt was acknowledged; $200 on receipt of machinery; $218.58 three months from shipment; $218.58 six months from shipment; $218.59 nine months from shipment. For the deferred payments promissory notes were given by the Eagle Milling Company, in each of which was this provision immediately following a description of the property: “And delivery of said personal property is made to the maker hereof upon the express condition that the title to the said personal property shall remain in the payee hereof, his assigns and his legal representatives, until this note is paid in full, together with all costs of collection.” These notes have not yet been paid. After the delivery of the aforesaid personal property to the Eagle Milling Company that company insured it with defendant in error, loss, if any, being made payable to the J. B. Ehrsam Machine Company, as its interest might appear. During the time covered by the policy of insurance the Eagle Milling Company transferred its interest in the insured property to Louise S. Schwarz, who was the holder thereof at the time the property was destroyed. Notwithstanding a provision in the policy that the transfer of the interest of the assured in the property would operate to avoid the policy itself, unless assented to by the defendant in error, the transfer just referred to was made without such knowledge or assent. There was no attempt to explain how "this happened, neither was there evidence of any fact which would operate to suspend or avoid the provisions of forfeiture resulting from the terms of the policy. So far as the rights of plaintiff in error were concerned in this case, it is deemed sufficient to remark that by its own showing the title of the property insured was retained by it, and that the interest of the Eagle Milling .Company was only that of one in the possession of personal property with the right to acquire title when payment therefor should be fully made. This right of plaintiff in error, if measured by the provisions above quoted, would bar its right of recovery, for the representation of the Eagle Milling Company that it was the owner of the property, was false when made for the purpose of procuring the issuance of the policy herein sued upon. The plaintiff in error has made no showing of any reason why the forefeiture of the policy above referred to did not extend to and involve its rights thereunder. The district court properly instructed the jury to find for the defendant, and the judgment rendered on that verdict is

Affirmed.