Egan v. Boston Insurance

Mr. Presiding Justice Freeman delivered the opinion of the court. It is conceded by appellant that practically his only defense to the suit arises under his plea of the statute of limitations. The right of appellee to recover, unless its suit is barred by that statute, was apparently determined in Egan v. British and Foreign Marine Insurance Company, 193 Ill. 295, a case in which the facts were substantially the same as in the present suit. Appellant contends that this is not an action upon a written contract, but upon a mere implied promise to pay arising from the relation of the parties as determined by the contract; and it is insisted that more than five years having elapsed since the cause of action arose, recovery is barred by the provisions of section 15 of the statute of limitations. (R. S., Chap. 83, Sec. 15.) It is said that the provision of the policy upon which this action is brought, and which is quoted in the foregoing statement, is not an agreement to pay any sum or sums of money, but merely an assignment of a claim whenever such claim shall arise; that it does not provide that any sum or sums which may be collected by the appellant shall be paid to appellee; that recovery can be had only upon the theory of money had and received for the use of plaintiff, and such action is barred after five years by the statute. It is true that the provision in question, of the policy under which appellant was paid a part of his loss, does not contain any express promise to pay or repay any sums of money which may be received by the insured for his loss or damages. It does contain, however, what is in substance and effect an agreement to assign to appellee, in case of any loss or damage under the policy for which he may thereafter accept payment under the policy, all his right to recover for said loss or damage from any person or corporation liable therefor, to the extent of such loss or damage and expenses of recovery which may be paid or incurred by appellee. By the literal terms of the contract, as expressed upon its face, the insured “ hereby and by that act,” viz., the act of accepting payment in case of any loss or damage under the policy—a condition which might never exist— assigns and transfers to the appellee all his “ right to claim for such loss or damage as against any person or persons.” The contract purports, therefore, “ hereby,” and also by a future act which might never occur, to assign and transfer a claim for loss or damage which may never exist. It is in substance, therefore, an agreement to assign thereafter, at such time in the future as the condition precedent shall arise, and not merely a present assignment. This agreement to assign was broken when appellant undertook and recovered for himself the loss and damage, the right to which he had agreed to transfer to appellee. Appellee in this suit seeks to recover upon the contract the damages it has suffered by reason of appellant’s breach of his agreement. The action is upon the written contract, and the section of the statute" of limitations referred to is not applicable. The agreement as set forth in the writing is not indefinite. It is not necessary to resort to parol testimony to make it complete. It is not to be treated, therefore, as an oral contract in applying the statute of limitations. Plumb v. Campbell, 129 Ill. 101-107; Cochrane v. Oliver, 7 Ill. App. 176. The judgment of the Circuit Court must be affirmed.