Westchester Fire v. Thomas Goggan Bro.

I concur with the majority of the court in the opinion that the judgment of the court below should be affirmed, but think the affirmance should be based upon the ground that the insurance on the piano was taken out for appellee's benefit, and in consideration of appellee's forbearance to institute proceedings to collect the notes given by Mills for the purchase money on the piano, and which were due when the insurance was obtained. The letter from Mills to appellee, set out in the opinion of the majority, states that the insurance was "taken out especially for your [appellee's] protection." The trial court finds that Mills wrote this letter to induce appellee to extend the credit. This finding is not complained of by appellant. The undisputed evidence shows that at the time the insurance was taken, which was a few days before the letter above mentioned was written, several, if not all, the notes given appellee by Mills were due, and appellee was demanding payment, and that after the receipt of the letter no action was taken by appellee to enforce the payment of the notes by suit and foreclosure of the mortgage upon the piano.

I think these facts clearly show that the insurance on the piano was taken out for appellee's benefit, and that in consideration of the procurement of the insurance appellee forbore to enforce the payment of the notes by suit and foreclosure of the mortgage. As between Mills and appellee, the right of appellee to have the purchase-money notes for the piano paid out of the proceeds of the insurance policy cannot be doubted, and the failure of the policy to so state is immaterial in view of the fact that the evidence shows that appellant was informed by both Mills and appellee, before it paid the amount due on the policy to Mills, that the amount due appellee for the piano was to be paid out of the insurance money. Appellant, it seems to me, had no more right to pay the money to Mills after the notice it had of appellee's right thereto than it would have had if the policy, by its written terms, had been made payable to "appellee as its interest might appear," which is the usual form in which insurance policies taken out on property by debtors for securing the mortgage creditor are written. The following general statement from 2 Ruling Case Law, p. 614, of the principle of the law of equitable assignments, is applicable to any assignment of an interest in a chose in action, whether the assignment is intended to pass the absolute title or is only intended as security for a debt:

"Since equity disregards mere form, no particular words or particular form of instrument is necessary to effect an equitable assignment. Any language, however informal, if it shows the intention of the owner of the chose in action to transfer it, so that it will be the property of the transferee, will act as an equitable assignment. It has been said that any order, writing, or act which plainly makes an appropriation of a fund or debt may amount to an equitable assignment, and that the true test of an equitable assignment is whether the debtor would be justified in paying the debt to the person claiming to be the assignee. Thus it has been held that there is a valid assignment in equity whenever the person to whom an obligation is due authorizes its payment to another, either for his own use or for that of some other person, or authorizes any one to receive or hold the moneys, and to apply them to any specific purpose other than for the benefit of the assignor. An assignment may be in parol, or partly in writing and partly oral. If the equitable assignment of a debt is in writing, and the intent and contract of the parties are not fully expressed, it has been held that parol evidence is admissible as in similar cases in reference to written instruments. Moore v. Lowrey,25 Iowa 336, 95 Am.Dec. 790."