King v. Insurance Co. of North America

Thompson, J.,

delivered the opinion of the court.

The facts in this case are the same as those in the case of the same plaintiffs against the iEtna Insurance Company, ante, p. 128, just decided, with the exception that the instrument of writing which was given by the plaintiffs to the defendant on executing the settlement, and surrendering the policy here sued on, ran in somewhat different language. It was written across the face of the policy, and was as follows :

“$717.00. Insurance Company North America, “of Philadelphia, Pa., “Springfield, Mo., March 22, 1886.

“ Received of the Insurance Company of North America, of Philadelphia, Pennsylvania, through J. N. Coady, State Agent, the sum of seven hundred and seventeen dollars, being the full satisfaction of all claims for loss or damage by fire which occurred on the sixth day of March, 1886, to the property insured, under policy number 145, issued at Springfield, Missouri, agency of said company ; in consideration of which the said policy is hereby surrendered and all liabilities thereunder discharged.

“Amount of claim....................$717 00

“Interest............................ 14 34

“Draft...............................$702 66

“( Signed), B. T. King, Agent for

“B. T. King & Co., the assured by said policy.”

It will be observed that the substantial difference between the language of this receipt and that given in the case of the JEtna Insurance Company consists in the fact that this receipt does not recite that the policy is surrendered and cancelled, “ in compromise settlement.” But we think that the absence of this recital cannot affect the result. The evidence shows that the agreements were the same between the plaintiffs and all of the twelve companies liable for the loss ; and this paper and the admitted fact of the surrender of the policy for cancellation at the time when it was given must be taken as an execution by the parties to the agreement previously made, and as an estoppel against the plaintiff from maintaining this action.

The judgment is reversed and the cause not remanded.

All the judges concur.