Collins Armstrong Co. v. Insurance Co. , 7 Tex. Civ. App. 579 ( 1894 )

Mrs. C. Chambliss being indebted to plaintiff in error in the sum of $245, secured it by mortgage on a piano, which, with other personalty, she caused to be insured by defendant in error.

After the property was burned, in order to appropriate to the payment of this debt that amount of the insurance policy, she executed and delivered to the agent of plaintiff in error the following order:

"FORT WORTH, TEXAS, April 10, 1891.

"Swayne, Allen Goodell:

"GENTLEMEN — Please pay to the order of Collins Armstrong Company $245, balance due them on one Wegman Co. piano, number 3855, purchased by me of the said firm January 3, 1890, which was insured in the United States Insurance Company for $400, and destroyed by fire on the night of April 6, 1891.

"C. CHAMBLISS."

Swayne, Allen Goodell, to whom this order was addressed, were agents of defendant in error under the following power of attorney:

"United States Fire Insurance Company of New York. — Know all men by these presents: That Swayne, Allen Goodell of Fort Worth, Texas, have been appointed and constituted agents of the United States Fire Insurance Company, of the city of New York, with full power to receive proposals for insurance against loss and damage in Fort Worth and vicinity, to fix rates of premium upon such insurance, to receive moneys, to countersign, issue, renew, and consent to the transfer of policies of insurance signed by the president and attested by the secretary of said company, subject to the rules and regulations of said company, and to such instructions as may from time to time be given by its officers." [Signed by the President and Secretary.]

The proof tended to show that Swayne, Allen Goodell were presented with this order as the agents of defendant in error, and that it was the intention of Mrs. Chambliss, by the execution and delivery of the order, to appropriate that amount of the policy to the payment of the debt due plaintiff in error, and that the order was so accepted by plaintiff in error, of which Swayne, Allen Goodell had notice before the amount of the policy was paid to Mrs. Chambliss. As these agents were authorized to "countersign, issue, renew, and consent to the transfer of policies of insurance," and as the insurance company acted through them in the payment of the policy in question, we are of opinion that they were acting within the scope of their powers when they received notice of the assignment; and therefore, notice to them was notice to defendant in error.

There was some conflict in the evidence as to what passed between these agents and the other parties. It became, we think, a question for the jury under appropriate instructions from the court, whether this order, when read in the light of all the testimony, was intended as a transfer to plaintiff in error of that amount of the insurance policy; and whether, in paying the full amount of the policy to Mrs. Chambliss, the defendant in error had notice of such assignment.

In speaking of an equitable assignment, the Court of Appeals of New York used this language: "The test is an inquiry whether the debtor would be justified in paying the debt, or the portion contracted about, to the person claiming to be assignee." Fairbanks v. Sargent, 6 L.R.A., 475.

Under the facts disclosed by this record, if defendant in error had paid the amount of the order to plaintiff in error, it seems clear to us that it would have been justified in so doing. At least, there was evidence from which this conclusion might have been drawn.

It was not necessary, in order to make it obligatory upon the agents of defendant in error to respect this assignment, that they as agents of the insurance company should have accepted and agreed to pay the same. The charges, therefore, to which the second and third errors are assigned, in conflict with the views here expressed, were erroneous, and require that the judgment be reversed.

The cause will be remanded for further proceedings in accordance with this opinion.

Reversed and remanded.