Julian v. Davis

*527 BRADLEY, J. Plaintiff sued to recover on an account of $2015.12. A judgment was given for $1850, and defendants appealed. *528 The defense was that plaintiff carried and collected certain fire insurance which should be applied as payment on the account sued for. The only point raised on this appeal is that the court erred in failing to grant defendants a new trial on the ground of newly discovered evidence. Plaintiff under the name of the Marshfield Supply Company was engaged in selling supplies used in growing and canning tomatoes, and also in buying and selling canned tomatoes. Defendants were engaged in canning' tomatoes, and purchased supplies from plaintiff to the amount sued for. Plaintiff had a warehouse in which supplies and canned tomatoes were kept, his own as well as others who might store their tomatoes in said warehouse. Before selling the supplies sued for, plaintiff and defendants entered into a written contract whereby it was agreed that plaintiff would have a lien on the supplies sold for the purchase price; and also an additional lien on the tomatoes packed in the cans sold by plaintiff to defendants, and that said lien would continue until the supplies were paid for. The contract provided for the sale of canned tomatoes by defendants and the application of a part of the proceeds on the account. It also provided that if any part of the account remained unpaid after October 25, 1920, then defendants were to deliver to plaintiff’s warehouse not less than three dozea cans of standard number three canned tomatoes for each dollars of said account remaining unpaid. Defendants were to pay the storage, and plaintiff was “to have the same lien remedy for storage as for the original purchase price.” It was provided in the contract that the canned tomatoes stored in plaintiff’s warehouse were to remain the property of defendants, and remain subject to plaintiff’s lien for the purchase price, and were to be kept insured by defendants for the benefit of plaintiff. ' Plaintiff’s warehouse was destroyed by fire, and at the time of the fire defendants had stored therein canned tomatoes amounting in value to $2480.34, upon which defendants had a policy af insurance for $2000 in which policy plaintiff’s lien was recognized and provided for *529 by tbe usual loss payable, clause. This insurance was paid. Plaintiff also carried insurance, and defendants contend that the insurance carried by plaintiff covered the destroyed property of defendants, and that the amount of insurance collected by plaintiff on defendants ’ property should be credited on the account. At the trial plaintiff in effect contended that the insurance he had amounting to about $24,000 covered only his own property, and did not cover defendants’; but it was shown that plaintiff had and collected .one policy of $2000 which did cover canned goods held “for storage,” and plaintiff requested an instruction allowing defendants a pro rata credit because of this policy, and this credit was allowed as is shown by the amount of the verdict. Defendants in their motion for a new trial alleged as newly discovered evidence that the insurance which plaintiff carried in the Canners Exchange Insurance Company upon which it is alleged plaintiff collected $22,000, provided for and covered goods placed in storage as were defendants’ tomatoes. The trial court overruled the motion for a new trial, but upon what ground does not appear. Plaintiff contends in effect that the action of the trial court in overruling the motion for a new trial may be sustained on three grounds: (1) That the policies in the Canners Exchange did not cover defendants’ destroyed property; (2) that if the policies in fact covered defendants’ canned goods stored defendants did not make such showing as would entitle them to a new trial on the ground of newly discovered evidence; and (3) that if the policies in the Canners Exchange did cover defendants’ goods that plaintiff, having a lien thereon, had a right to have them insured, and that he is not compelled to apply the proceeds of the insurance in such case on the account sued on. We are of the opinion that the third ground is sufficient to support the action of the trial court in overruling the motion for a new trial, and it is not necessary to consider the others. In considering this ground we assume that the policies in the Canners Exchange did in fact *530 cover defendants’ canned goods that were stored in plaintiff’s warehouse and destroyed by fire. It is conceded that plaintiff had a lien on these goods for $2015.12. There were several policies in the Canners Exchange, all alike, and aggregating about $22,000. Plaintiff paid the premiums. There was no agreement whereby plaintiff was bound to keep the goods insured for the benefit of defendants. Plaintiff occupied the position of a mortgagee, and had the lawful right to insure his interest, and defendants, who occupy the position of mortgagor, are not entitled to have the proceeds of the insurance held by the plaintiff mortgagee applied towards the extinguishment of the debt for the purchase price. [McDowell v. Morath, 64 Mo. App. 290; Rutherford v. Sample, 186 Mo. App. 469, 171 S. W. 578; Dick v. Franklin Fire Ins. Co., 10 Mo. App. 376, Id. 81 Mo. 103.] Plaintiff conceded more than the law required in his instruction allowing a pro rata- credit because of the policy in evidence at the trial which covered stored goods. The judgment should be affirmed and it is so ordered. Cox, P. Jand Farrington, J., concur.