American Spelter Co. ex rel. Union Trust Co. v. Manchester Fire Assurance Co.

Bland, P. J. This suit was brought on a fire insurance policy issued by the appellant to the American Spelter Company, “loss, if any, payable to the Union Trust Company of St. Louis,” was written in the face of the policy, and this fact was averred in the petition. The answer admitted the execution'of the policy, but set up by way of defense a number of breaches of the conditions of the policy by the American Spelter Company. It also contained a general denial. A reply to the answer was filed. On the trial the appellant objected to the introduction of any evidence, upon the ground that the Union Trust Company was the only party that could maintain the action. This objection was sustained by the trial court, whereupon the respondent took a nonsuit, with leave to move to set the same aside. A motion to set aside the nonsuit and grant a new trial was timely filed, and by the court sustained, and a new trial granted. From this order of the court granting a new trial, the Manchester Fire Assurance Company duly appealed to this court. [661] Pleading: defeet of parties: [660] The writing in the face of the policy, “loss, if any, payable to the Union Trust Company of St. Louis,” [661] was an assignment of all .beneficial inter ,. est in the policy to the latter company, Bergman v. Ins. Co. 15 L. R. A. 270,— and it was the only necessary party to the suit. R. S. 1889, sec. 1990. The fact that the American Spelter Company was an unnecessary party plaintiff, was apparent upon the face of the petition, and should have been taken advantage of by demurrer. R. S. 1889, sec. 2043; Hager v. Graves, 25 Mo. App. 164; Lucky v. Treadway, 45 Mo. App. loc. cit. 515, 516; Pike v. Martindale, 91 Mo. 268. The defect being apparent upon the face of ^he petition, the appellant, by failing to take advantage of it by demurrer, waived it. R. S. 1889, sec. 2047; Pike v. Martindale, supra, Mechanics Bank v. Gilpen, 104 Mo. 17. The order of the trial court setting aside the non-suit and granting a new trial is affirmed, with directions that respondent be permitted to amend the petition by striking out the name of the American Spelter Company as a party plaintiff, if it is so advised. All concur.