Cobb v. Keith, Smith & Co.

HEAD, J. Keith,. Smith & Co., plaintiffs in the lower court, were fire insurance agents in the city of Anniston. Lulie C. Cobb, being the owner of the Wilmer Hotel, applied to them, on the 21st day of November, 1883, for insurance on the building and furniture, and agreed if they would advance the premium for such insurance she would repay them on or before the 15th day of February, following. Keith, Smith & Co. thereupon issued the policies of insurance and advanced the premium due for same, amounting to $237.50. Mrs. Cobb failed to repay the money so advanced and Keith, Smith & Co., after giving her five days notice beforehand of their intention to do so, cancelled the said policies of insurance, on the 27th day of February, 1894. Upon the cancellation of said policies, they received from the companies which had issued them the unearned premiums due thereon for the unexpired term, aggregating $174.18, which they retained. The difference between the sum of these return premiums and the amount paid for the policies in the first instance is what is sued for in this action. All of the policies were in full force from November 21st, 1893, until Feb [617] ruary 27th, 1894, and $63.32 is the premium for that time at the yearly rate. Each of the policies contained the following provisión : “This policy shall be cancelled at any time at the request of the insured, or by the company, by giving five days notice of such cancellation. If this policy should be cancelled as hereinabove provided, .or become void, or cease, the premium having been actually paid, the unearned portion shall be returned on surrendering this policy or last renewal, this company retaining the customary short rate, except that when this policy is cancelled by this company by giving notice, it shall retain the pro rata premium.” 1. The first assignment of error is based on the court’s action in sustaining a demurrer to the special plea numbered 4. This plea seems to have been drawn with a view to presenting the facts of the case and is in accordance with the statement above made. • It alleges that the plaintiffs caused the policies of insurance to be cancelled by the companies issuing the same, without the authority or consent of Lulie C. Cobb, and it draws the conclusion that this action on the part of the plaintiffs was wrongful, and a repudiation by them of the obligation of their contract made with Lulie C. Cobb on the 21st day of November. The grounds of demurrer assigned to the plea are, in substance, that it is not alleged that defendants suffered any loss or injury by reason of the cancellation of the policies, and that there is no allegation that defendants did Hot receive the full value, in insurance, of the sum sued for. There was no error in sustaining this demurrer. The plea was no answer to the complaint, and, indeed, it shows on its face that plaintiffs had a good cause of action. They fully complied with their contract when they procured the policies of insurance to be issued and paid for the same, and in having them cancelled, it does not appear that they were guilty of any wrong to Mrs. Cobb. In so doing they were not acting for her or for themselves, but for the companies, which had the undoubted right, under the provision of the. policy, above set forth, to make such cancellation, without assigning any cause for so doing. But even if plaintiffs had been guilty of a wrong towards Mrs. Cobb in this matter,it was entirely independent of and separate from the original transaction, and it is not shown that Mrs. Cobb sustained any [618] injury or loss thereby, which is sought to be set off against plaintiffs’demand. They had the right to apply the return premiums in liquidation pro tanto of her indebtedness to them, and the effect of doing so was to diminish, by that amount, their claim against her. It left still due them the sum of $63.32 which they had paid for her, at her request, and if there is any reason in law or in morals why she should not repay the same, it is not disclosed by the record. 2. We regret to hold, therefore, that the judgment of the lower court must be reversed, for a reason now to be stated. H. Ii. Cobb was joined as a party defendant with Lulie C. Cobb. On the complaint as it thus stood, the plaintiff was not entitled to recover on proof of any other than a joint cause of action or joint contract. The evidence showed a contract made with Lulie C. Cobb alone. There does not seem to have been any attempt made to connect H. H. Cobb with the transaction, and we cannot conceive why he should have been sued. If the complaint had been amended by striking out his name, the cause might properly have proceeded to judgment against Lulie C. Cobb alone, but this was not done. Under the evidence there was a fatal variance between the allegations and the proof, and the court below erred in rendering the judgment it did.—Gamble v. Kellum, 97 Ala. 677; Jones v. Engelhardt, 78 Ala. 505; Steed v. McIntyre, 68 Ala. 407; Jones v. Nelson, 51 Ala. 471. In order that the plaintiffs may have opportunity to correct their misdescription of the cause of action by amendment, if they so desire, the cause will be remanded to the court below. Reversed and remanded.