DocketNumber: File No. 6208.
Citation Numbers: 252 N.W. 42, 64 N.D. 317
Judges: BURKE, J.
Filed Date: 12/19/1933
Status: Precedential
Modified Date: 1/13/2023
The plaintiff, as surviving partner of the Baker Insurance Agency, a co-partnership, brings this action to recover the premiums from the mortgagee of insured mortgaged property. The trial court made findings of fact and conclusions of law favorable to the plaintiff and from a judgment duly entered thereon the defendant appeals.
There is no dispute in the facts. At the time of the institution of the action the defendant, Fargo Building and Loan Association, was the owner of two mortgages, one for $40,000 and one for $5,000, executed by one C.H. Porritt, covering a certain business block in the city of Fargo. The said mortgages contained a covenant on the part *Page 320 of Chas. H. Porritt to keep such premises and buildings insured against loss by fire, tornado and windstorm and against loss of use, occupation and rents to said premises arising out of any such casualty and requiring the said Chas. H. Porritt to procure and deliver to the said defendant, Fargo Building and Loan Association, policies of insurance acceptable to the said Fargo Building and Loan Association, with loss, under said policies, payable to the said Fargo Building and Loan Association, as such mortgagee, as its interest might appear. That said mortgage further provided that in case the said C.H. Porritt failed, neglected or refused to procure said insurance or to deliver said policies to said mortgagee, that the said mortgagee was authorized to obtain and procure such insurance, and if said mortgagee was required to pay or advance any insurance premiums for the protection of said mortgaged property, then that amount so paid or advanced by said mortgagee should constitute a part of said mortgage indebtedness and that the amount thereof, together with interest, should be added to and constitute a part of said mortgage debt which might be enforced against said mortgaged property. The said C.H. Porritt, with the approval of the defendant, procured certain insurance policies from the plaintiff and delivered them to the defendant. The names of the insuring company, the policy numbers, the amount of the policy and the premiums involved are as follows:
Policy Amount Insuring Company Number Date of Policy Premium
N Y Underwriters Ins. Co. 27130 2-18-27 $ 8,850 $178.06 St. Paul Fire Mar. Ins. Co. 7767 4-20-28 9,000 155.25 N Y Underwriters Ins. Co. 27276 5-26-28 4,500 90.54 N Y Underwriters Ins. Co. 2066 6-29-28 10,000 50.00 St. Paul Fire Mar. Ins. Co. 7784 9-14-28 10,000 201.20 St. Paul Fire Mar. Ins. Co. 321 1- 6-29 10,000 50.00 Hartford Fire Insurance Co. 10431 8-13-29 7,500 139.13 St. Paul Fire Mar. Ins. Co. 7868 9- 7-29 2,500 46.25 Ætna Insurance Company Co. 9187 9-24-29 13,500 249.75 St. Paul Fire Mar. Ins. Co. 7886 12-11-29 5,000 92.75 N Y Underwriters Ins. Co. 27443 2-28-30 8,850 164.17
As a further security for the payment of the mortgage debt, the *Page 321 defendant took an assignment of the rents of the mortgage property and the record shows that it was collecting such rents at the time of the trial.
Sometime after the last policy was issued Porritt died and the plaintiff who, by virtue of a contract with the insurance companies, had paid to the various companies the amount of the premiums, less 25% his commission, filed a claim for the amount paid in premiums against the Porritt estate in the county court, which claim has not been paid. The mortgage clause in each insurance policy had the usual provision for subrogation and each of the insurance companies executed and delivered to the Baker Insurance Agency an assignment describing each policy, the amount of the premium and containing this provision:
"Whereas, The premium on said policy was not paid by the said owner and/or the mortgagee, and, whereas, the premium on said policy was charged to and was also an obligation of Baker Insurance Agency of Fargo, North Dakota, and said premium has been paid by said Baker Insurance Agency to the undersigned.
"Now therefore, In consideration of the payment to the undersigned, of a sum of money equal to the amount of said premiums, the receipt whereof is hereby acknowledged, the undersigned does hereby assign, set over, transfer and subrogate to the said Baker Insurance Agency of Fargo, North Dakota, all rights, claims, choses or things in action which the undersigned might have as against the said owner and/or mortgagee, to whom said policy was issued and do hereby authorize and empower the said Baker Insurance Agency at its own cost and expense to sue, compromise or settle in its name or otherwise, the said claim for said unpaid premium and said Baker Insurance Agency is hereby fully substituted in the place of the undersigned and subrogated to all of the rights of the undersigned by reason of the issuance and delivery of the said policy."
On November 29, 1932, the plaintiff made demand upon the defendant for the payment of the premiums. The plaintiff relies on the clause contained in each of the insurance policies as follows:
"Loss, if any, payable to Fargo Building and Loan Association, or assigns as mortgagee, as such interest may appear. This policy as to the interest therein of the said payee, as mortgagee (or trustee) only, shall not be invalidated by any act or neglect of the mortgagor or owner *Page 322 of the within described property nor by the commencement of foreclosure proceedings, nor the giving of notice of sale relating to the property, nor by any change in the interest, title, or possession of the property, nor by any increase of hazard; Provided that in case the mortgagor or owner shallneglect to pay any premium due under this policy, the mortgagee(or trustee) shall, on demand, pay the same; and Providedfurther, that the mortgagee (or trustee) shall notify thiscompany of the commencement of foreclosure proceedings, and ofany notice of sale relating to the property, and of any change ofownership or occupancy or increase of hazard which shall come tothe knowledge of said mortgagee (or trustee) and, unlesspermitted by this policy, the same shall be noted thereon and themortgagee (or trustee) shall, on demand, pay the premium for anyincreased hazard."
It is the contention of the appellant (1) that the standard mortgage clause of the insurance contract is a condition and not a covenant, consequently there is no obligation on the part of the appellant to pay the premiums. (2) The plaintiff is not entitled to be subrogated to the rights of the insurance companies by virtue of his laches. (3) The plaintiff is not entitled to recover the 25% commission.
The first case construing the uniform standard mortgage clause in an insurance policy is the case of St. Paul F. M. Co. v. Upton,
It is also the contention of the appellant that the clause construed in the Upton Case differs materially from the clause involved in this action. There is no merit to this, as the clause construed in the Upton Case is the identical clause relied upon by the plaintiff in this action, namely, "Provided that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same." In construing this clause in the Upton Case, the court said: "Does the clause contain an express promise on the part of the defendant, the mortgagee, to pay the premium in case of the default of the mortgagor? It is insisted that it merely *Page 323 prescribes a condition, on the performance of which the mortgagee may entitle himself to the benefits of this clause. But why should this agreement be so construed as to give the mortgagee the option to avail himself of its provisions while the insurance company is to have no choice? If this was the intention of the parties, why did not the provision read as follows: `Provided, that the mortgagee, in case of the default of the mortgagor, shall have paid the premium at the time he claims the benefit of this clause.' This would have left in him an option. But the clause, as it does read, is an absolute engagement to pay the money on the default of the mortgagor — `then, on demand the mortgagee would pay the same.' The clause provides that no neglect or act of the mortgagor, nor shall the vacancy of the premises, invalidate the policy. If defendant's contention is sound, this provision would be nugatory, if the mortgagor should pay the premium on time, for it is only in case of the mortgagor's default that the mortgagee can perform this condition of payment, and defendant insists that it is only on performance of such condition by him that he can have any rights under the mortgage clause. This construction would destroy its effect in many cases. It would often deprive the mortgagee of any benefit from the provision that he would not be prejudiced by any act or neglect of the mortgagor, nor by reason of the vacancy, etc., of the premises. The maxim, ut res magis valeat quam pereat, is a safe guide. The mortgage clause gave the mortgagee immunity from certain forfeitures resulting under the policy from the mortgagor's acts or omissions, and the mortgagee in terms agreed to pay for this immunity the premiums in case of the mortgagor's default. This is the clear import of the agreement."
In the instant case the policies did not become void as to the mortgagee on the failure of the mortgagor to pay the premiums. The mortgage clause states "This policy as to the interest therein of the said payee, as mortgagee (or trustee) only, shall not be invalidated by any act or neglect of the mortgagor or owner . . . nor by the commencement of foreclosure proceedings, nor the giving of notice of sale relating to the property, nor by any change in the interest, title, or possession of the property, nor by any increase of hazard." None of the acts mentioned would invalidate the policy as against the mortgagee. It is only the noncompliance of the mortgagee with the terms of the *Page 324 contract which renders the policy voidable as to him. The failure on the part of the mortgagor or owner to pay the premium does not avoid the policy, for under the terms of the mortgage clause, "in case the mortgagor or owner shall neglect to pay any premium . . . the mortgagee . . . shall, on demand, pay the same," and in the instant case the premiums having been paid by the Baker Insurance Agency there was no breach of contract by any one that would avoid the policies. They were in full force and effect and the insurance company was liable at all times during the life of the policies to the mortgagee for any loss.
In the case of Boston Safe Deposit T. Co. v. Thomas,
In the case of Ormsby v. Phenix Ins. Co.
"Frequently protection is extended to the mortgagee so far as to prevent the invalidating of the policy by any act of the mortgagor or owner of the property insured." 1 Jones, Mortg. 567 and 568, §§ 406 and 406a. The mortgagee can only be defeated by his own acts and he could not recover in the South Dakota case because of his failure to comply with the mortgage clause. In the instant case it is not the mortgagee suing to recover for a loss, but the mortgagee is the defendant in an action brought against him for its failure to pay insurance premiums of which it had the benefit.
"The effect of such a policy (said Chief Justice Field) is the same as if the mortgagor had taken out the insurance in his own name, and then assigned it to the mortgagee to the extent of his interest, and the insurance company had assented to the assignment and had promised the mortgagee that no act or default of the mortgagor should defeat the right of the mortgagee to recover to the extent of his interest." 1 Jones, Mortg. 576 and many cases cited. Oakland Home F. Ins. Co. v. Bank of Commerce,
In the case of Syndicate Ins. Co. v. Bohn (C.C.A. 8th) 65 F. 165, Judge Sanborn speaking for the court said: "The effect of the `union mortgage clause,' providing, among other things, that the insurance, as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor, nor by any change in title or possession, provided the mortgagee shall notify the company of any change coming to the mortgagee's knowledge, and that when the company shall pay the mortgagee for a loss, and the claim that no liability existed as to the mortgagor, it shall be subrogated to all rights of the mortgagee under securities held, when such clause is attached *Page 327 to an existing policy of insurance running to the mortgagor, is to make a new and separate contract between the mortgagee and the insurance company, and to effect a separate insurance of the interest of the mortgagee, dependent for its validity solely upon the course of action of the insurance company and the mortgagee, and unaffected by any act or neglect of the mortgagor, of which the mortgagee is ignorant, whether such act or neglect was done or permitted prior or subsequent to the issue of the mortgage clause."
In the case of Stoddart v. Black,
In the instant case the mortgage requires the mortgagor to insure the property in companies approved by the mortgagee and the record shows that the policies, with the mortgage clause attached, were delivered to the mortgagee when issued and in possession of the mortgagee at all times, so that under the New York decision the mortgagee would be bound because the mortgage clause was brought home to him by the delivery of the policies in compliance with his mortgage contract with the mortgagor.
In the case of Radil v. Morris Co.
"Words of proviso and condition will be construed into words of covenant, when such is the apparent intention and meaning of the parties." 2 Parson, Contr. 9th ed. page 667 and note F; Clapham v. Moyle, 1 Lev. 155, 83 Eng. Reprint, 345, 1 Keble, 842, 83 Eng. Reprint, 1275; Shep. Touch. 122; Huff v. Nickerson,
Under § 5896, Compiled Laws 1913, a contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting so far as the same is ascertainable and lawful. Under § 5898 the language of the contract is to govern its interpretation, if the language is clear and explicit and does not involve an absurdity, and under § 5901, the whole of a contract is to be taken together so as to give effect to every part, if reasonably practical, each part helping to interpret the others.
The many decisions cited and relied on by appellant are based, not upon the whole contract, but upon the one word "provided" which introduces the sentence involving the mortgagee's liability. Under these decisions the mortgage clause is binding on the insurance company and on the mortgagor, but the mortgagee is not bound. As to the mortgagee, it is merely an option which he may or may not take advantage of as he chooses. The language "provided that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same," is clear mandatory language. Corliss, Ch. J., said in the Upton Case,
In Stoddart v. Black,
In the instant case the insurance companies required the Baker Insurance Agency to pay the premiums and said agency is subrogated to the rights of the insurance companies to collect the premiums. There is no merit to the claim that the plaintiff is not entitled to collect its commissions. The commissions are a part of the premiums for which the mortgagee is liable. The cases which hold that the insurance agent, who procured the policies, cannot recover for the premiums paid are cases which hold that the mortgagee is not liable at all and therefore are not in point.
The judgment is affirmed with costs.
BURR, Ch. J., and NUESSLE and CHRISTIANSON, JJ., concur.
MOELLRING, J., did not participate.
Clark v. Jones , 30 Ariz. 545 ( 1926 )
Schmitt v. Gripton , 77 Cal. App. 429 ( 1926 )
Olmsted Co. v. Insurance Co. , 118 Ohio St. 421 ( 1928 )
Lyon v. . Hersey , 103 N.Y. 264 ( 1886 )
Whitehead v. . Knitting Mills , 194 N.C. 281 ( 1927 )
Home Insurance Co. v. Union Trust Co. , 40 R.I. 367 ( 1917 )
Johnson, Sansom v. Fort Worth St. Bank , 244 S.W. 657 ( 1922 )
Acuff Co. v. Bankers Trust Co. , 157 Tenn. 99 ( 1928 )