Perry v. Merchants' Insurance

CHILTON, C. J. — Assumpsit by Perry, as assignee of one Trimble, upon a policy of insurance executed by the appellees. The assignment to Perry was in blank as to date, except the year, which was 1853 ; but the proof conduced to show that the loss was before the assignment. Conceding this, the question is, whether the assignee can sustain an action on the policy in his own name. The judge of tile City Court held that he could not, and thereby forced the plaintiff to take a non-suit, who, under the statute, moves to set it aside in this court. [361] After a careful review of tbe statute, and the cases bearing upon this question, we are satisfied that the court mistook the law. The act (Olajas Dig. §§11,12, p, 383), after defining the rules which shall govern the remedy in respect of foreign and inland bills of exchange, and promissory notes payable in bank, declares, that “ all other contracts in writing, for the payment of money or property, or performance of any duty of whatsoever nature, shall be assignable as heretofore, and the assignee may maintain such suit thereon as the obligee or payee could have done, whether it be debt, covenant, or assumpsit.” The construction of this act, and the previous statute of 1812 relating to the same subject, came before this court in the case of Brown v. Chambers, 12 Ala. 697, 709-10, and we tliihk the principle settled by that case fully justifies the as-signee in this to maintain the action in his own name. The court, in that case, said : “Upon the first presentation of this case, the question presented itself, whether the general terms, ‘ performance of any duty of whatever nature,’ should not be limited to contracts in writing, where the undertaking was absolute and unconditional, although the duty was to be performed in futuro; but further reflection and examination has satisfied us, that the assignee of a bond with reciprocal covenants may maintain an action against the obligor in his own name, upon showing that the undertaking of the latter has become absolute, by the performance of the conditions which are incumbent on the obligee.” In the case before us, the loss had accrued, and the money due from the insurers was payable absolutely, when the policy was assigned, and we see no objection to allowing the assignee to sue in his own name. The case we have just referred to, in principle, certainly authorizes him to do so, and we are satisfied with it as a correct construction of the statute. The policy being assignable by law after the loss had accrued, and the money payable absolutely, the stipulation contained in it, that it should not be assigned, if it was intended to apply to it after the loss, cannot destroy the right of the assignee to appoint the person to receive or sue for the money by a transfer or assignment; but it is manifest from'the terms of the policy that it was not intended to apply in such case. [362] It is insisted, however, that the policy provides for a renewal, and this right was not assigned ; and-being reserved to the insured by the policy, the whole interest of Trimble was not assigned, and a part of it could not be. Without intimating any opinion, as to what would be our decision, if it had been shown that the right to renew existed at the time of the assignment, we are satisfied that, under the facts of this case, it interposes no obstacle to a valid transfer. The policy under which the loss accrued expired the 8th June, 1852, and was not renewed. Indeed, the condition of the property had been changed; a portion of it had been destroyed, so that the policy could not, in the nature of things, have been effected on the same property as mentioned and described in the application. The right to renew was, therefore, taken away by the destruction which produced the loss. Aside, however, from this, there is no positive right of renewal reserved by the policy after the condition of the property has undergone a change; on the contrary, the conditions of insurance provide that, in such cases, a new representation shall be made by the party insured. Indeed, it may be questionable, whether, in any event, the insurance office is bound to admit a renewal under the phraseology employed in the conditions annexed to the policy. The language is, “insurances once made may be continued for such further time as may be agreed on” <&c. Be this as it may, it is clear the time for renewal had passed, and the right to renew was destroyed by the loss of the subject-matter, or a portion of it, on which the insurance was effected, before the assignment, thus leaving the policy shorn of this question at that time. If, however, we were wrong in the construction we place upon the act of 1828, we entertain no doubt that the action is properly brought under the Code. Section 2129 declares, that “ every action founded upon a promissory note, bond, or other contract, express or implied, for the payment of money, must be prosecuted in the name of the party really interested, whether he have the legal title or not, subject to any defence the payer, obligor, or debtor, may have had against the payee, obligee, or creditor, previous to notice of the assignment or transfer.” This section applies, as it affects the remedy merely; and after the loss was fixed, and the right of renewal [363] gone, the policy was nothing other than a contract for the payment of money. Something was said in regard to the form of the assignment— that the policy is not assigned, but merely “ the loss or damage which accrued under it prior to the 1st January, 1853”; but, if we are right in what we have said, that the assignment was after the policy had expired, and when the liability of the insurers had been fixed, no difficulty can exist upon this point; for the whole interest passes under the assignment. It was conceded at the bar, in the argument by the counsel on both sides, that the policy Aras renewed but once, and did not continue down to the 1st January, 1853 ; so that the loss accruing before that period is all that remains to be made good fully to satisfy the stipulations contained in it, and none could have accrued thereafter. It follows that the assignment passed the whole interest. The motion to set aside the non-suit must be granted, with costs.