Zeimer v. Weikel

OLNEY, J.

This is an appeal by the defendant from a judgment against him for four hundred dollars. It appears that the defendant was the owner and the plaintiff the lessee of a certain building; that the plaintiff made certain improvements to the building of the value of four hundred dollars; that to protect his interests in these improvements it was agreed that insurance on the building in the amount of four hundred dollars would be taken out in the name of the defendant, but for the benefit of the plaintiff; that this was done; that the building was burned and the loss incurred, but the insurance policy was not collected, and that prior to the commencement of the action all right to recover upon it had been lost by failure to present proofs

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of loss within the required time. The foregoing facts appear without dispute. The dispute is over the nature of the agreement with relation to the taking out of the insurance, the plaintiff claiming that the agreement was that the defendant should collect the insurance in case of loss, so that he is responsible for its not being collected, and the defendant claiming that the agreement was only that the plaintiff might take out the insurance in the defendant’s name without any responsibility on the defendant for its collection.

The agreement in question was made upon the advice of an insurance agent, a Mr. Deason, that the insurance, while intended for the protection of the plaintiff, would have to be in the name of the defendant, as he was the owner of the building. The agreement was purely oral at first, but after the policy had been issued in the name of the defendant, the plaintiff wished something to evidence his right under it, and the defendant signed and gave him a writing for that purpose. The defendant complains that evidence of the terms of the oral agreement was admitted when there was a subsequent written agreement, but the point is not material, since so far as the question involved here is concerned there is no difference between the terms of the oral agreement and those of the writing. The plaintiff’s testimony as to the original oral agreement is: “Yes, we [plaintiff and defendant] talked about insurance with Mr. Deason— who represented Mr. Weikel [the defendant],—and he said the only way for me to do would be to take the insurance— the insurance amounted to four hundred dollars,—for me to take out a policy and pay him for it,—he would put it in Mr. Weikel’s name; Mr. Weikel said it was satisfactory to him.” The writing subsequently signed by the defendant and given to the plaintiff read: