Vierneisel v. Rhode Island Insurance Co.

McCOMB, J.

From a judgment in favor of plaintiffs after trial before the court without a jury in an action to recover a sum alleged to be due under the terms of a fire insurance policy, defendant appeals.

The material facts are these:

On June 1, 1944, defendant issued to Luigi and Luigia Ferrero, as assured, a policy of fire insurance indemnifying them against loss arising from destruction by fire of a dwelling house owned by them. On June 28, 1944, Mr. and Mrs. Ferrero and plaintiffs executed written escrow instructions to the Redlands Branch of the Bank of America regarding the sale of the insured property. Simultaneously with the execution of the escrow instructions Mr. and Mrs. Ferrero delivered to the escrow holder the fire insurance policy in question, and a deed conveying the real property to plaintiffs upon which the insured dwelling was located.

On June 29, 1944, the dwelling house was totally destroyed by fire and thereafter under a nonwaiver agreement the extent of the damage was established at $4,750.

On August 24, 1944, plaintiffs notified the Ferreros they had paid outside of escrow the sum of $200, had deposited $1,000 in escrow and they would deposit the further sum of $5,800 in escrow on account of the purchase price, but that they would not deposit further sums until the fire insurance claim was settled. On August 24, 1944, plaintiffs deposited $5,800 with the» escrow holder, accompanied by amended instructions stating that they were to receive the proceeds from the fire insurance policy when the claim was settled.

On September 28, 1944, plaintiffs deposited in the escrow $5,020 which represented the balance of the purchase price and escrow charges. On or about October 6, 1944, the Ferreros deposited in the escrow an assignment of that portion of the insurance policy relating to the dwelling and also of

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their rights to claim indemnity for destruction of the dwelling house by fire. On October 27, 1944, the Ferreros’ deed to plaintiffs was recorded and on November 9, 1944, plaintiffs received from the escrow the fire insurance policy, policy of title insurance, and the assignment of October 6, 1944. The fire insurance policy contained a provision that it could not be assigned without the consent of defendant. At no time was there a request that defendant consent to a transfer of the fire insurance policy to plaintiffs nor did defendant ever so consent.