Tucker v. American Insurance of Newark

BARNARD, P. J.

On November 28, 1927, the defendant, through one Petersen, who was its agent with full authority to issue insurance policies, issued to one Martha Arslanian a policy of fire insurance in the sum of $1,000,

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covering a dwelling-house on real property owned by her. Martha Arslanian had acquired this real property shortly prior to that date from the plaintiff herein through an exchange which had been negotiated by Petersen as a real estate agent. At the time of the exchange and at the time of the issuance of the policy, the property was encumbered by a mortgage and a deed of trust, securing separate obligations. On July 2, 1928, proceedings were begun to foreclose this deed of trust by recording the required notice in the office of the county recorder of Fresno County. Early in October, proceedings were begun to foreclose the mortgage referred to, summons being served on Martha Arslanian on October 10, 1928. Subsequently Petersen negotiated a retransfer of this property from Arslanian to the plaintiff herein, the property being conveyed to the plaintiff by deed dated November 21, 1928, and recorded December 5, 1928. On. December 21, 1928, the building insured under the policy was destroyed by fire. This action was brought to recover on the insurance policy referred to, and from a judgment in favor of the plaintiff the defendant has appealed.

Appellant contends that the court erred in finding that the policy in question was assigned to the respondent. It is urged that this finding is based upon an allegation in one of appellant’s separate defenses, in which it was alleged that such an assignment had been made, and it is urged that this allegation may not be considered, since a similar allegation in the complaint ■ was denied in another defense set up by the appellant. Conceding this to be the law, we cannot agree that this finding rests entirely upon this allegation in the appellant’s pleading. While it is true that no witness testified that such an assignment had been made, a number of the witnesses spoke of the matter as if an assignment had been made, and during the trial the attorney for the respondent said: “Tour Honor, they have pleaded under their oaths there was an assignment made so that would seem to establish that fact.” Shortly thereafter, the attorney for the appellant stated that they had also denied that fact upon lack of information and belief, whereupon the attorney for the respondent 'stated: “That is very well, but nevertheless it is an admitted fact in the case.” To this the attorney for the