Aetna Insurance v. Pelham

Stevens, J., delivered the opinion of the court. The injunction obtained by appellant in this cause was, in our judgment, properly dissolved by the chancellor, and the decree rendered by him must be affirmed. It cannot be presumed that appellant, as defendant in the suit being prosecuted by Mr. Cowan, "county treasurer of Jackson county, holder of the mortgage clause in the policy, will be compelled to pay anything more than the insurance company is liable for or ought to pay. The mortgagee sues upon its independent contract with the insurance company, and, the mortgage indebtedness being in excess of the insurance on the dwelling house, is entitled to the full proceeds of that insurance. There would be no obligation on Mrs. Pelham to contribute toward the payment of any judgment recovered by the county treasurer of Jackson county against appellant on the policy in question. Appellant as defendant in that action has its day in court, and will be compelled to pay a lawful and not an unlawful amount. On the trial of that suit the defendant has its day in court on the issue of whether there was a total or partial loss of the dwelling house. Appellant by injunction -attempts to assert a so-called offset and one not yet matured. Its claim grows out of an effort to bind Mrs. Pelham to an abortive appraisement. If the first appraisement en [238] tered into by appellant and Mrs. Pelham was not binding upon the mortgagee, as it evidently was not, Mrs. Pelham is no more to blame than the insurance company. She did what she was requested to do and all that she could do. "What she did was in a commendable effort to avoid litigation. Her rights should not be affected by this void appraisement. Neither of the parties is in position to base any rights thereon. Conceding that appellant will ultimately have to pay tiie full amount of the insurance on the dwelling house, this in itself will give appellant no right of offset against Mrs. Pelham simply because her appraiser agreed, so far as she was concerned, to accept a less sum. Five hundred dollars on furniture, the collection of which is enjoined in this proceeding, is admittedly due. It should be promptly paid. The chancellor awarded as damages a solicitor’s fee of seventy-five dollars for services rendered by appellee’s solicitor in the court below. There is a suggestion of damages and a motion for an allowance of a solicitor’s fee in this court. This motion will be sustained and a fee of forty dollars allowed for services rendered in the supreme court. Affirmed.