Farmers' Fire Ins. v. Gorzelany , 89 Ill. App. 388 ( 1900 )

Mr. Presiding- Justice Sears

delivered the opinion of the court.

But two questions are presented upon this appeal; first, as to the effect of the payment over to Baker by appellant of the money agreed upon for settlement of appellee’s claim; and secondly, the effect of. the limitation provision in the policy of insurance.

The payment of the money by appellant to Baker, its attorney, in no way operated to release it from liability to appellee. The theory of a novation advanced by counsel is untenable. The mere fact that a party turns over funds to his lawyer, to be used in payment of a demand, does not release the principal, in the event that the lawyer retains the funds and refuses to apply them as directed. Nor does the giving of a written acknowledgment by Baker to appellee and the surrender of the policy by appellee, together with his receipts, at all affect the question of appellant’s liability. As a matter of fact appellant’s lawyer has not yet used the money to pay appellee, and by the same reasoning appellant has not paid appellee.

The verdict, as finding in effect that appellee did not accept Baker in lieu of appellant as his debtor, is amply sustained by the evidence.

Neither does the limitation clause in the policy .bar this recovery. Within the period limited, viz., six months, a settlement was agreed upon at $440. This recovery is sustained by the agreement to pay the $140, without reference to the terms of the policy. The Farmers’ & Merchants’ Ins. Co. v. Chesnut, 50 Ill. 112; Ill. Mut. F. I. Co. v. Archdeacon, 82 Ill. 236.

If this suit was based upon the policy and not upon the contract of settlement of loss, vet appellant would not be permitted, after the agreement to settle, to urge the time limitation for bringing suit as a defense. Home Ins. & B. Co. v. Myer, 93 Ill. 271; Allemania Fire Ins. Co. v. Peck, 133 Ill. 220.

Therefore there was no prejudicial error in the ruling of the trial court excluding the evidence of the limitation provision.

The alleged assignment of appellee’s claim to one Adamezyk, is of no consequence in relation to this recovery.

The evidence as to the pendency of garnishment suits is very contradictory and unsatisfactory.

Counsel for appellant base their argument for reversal upon the two points above considered.

The judgment is affirmed.