is there any complaint that this question of negligence was not fairly and fully submitted to the jury, or that the parties were not fully heard upon it or in any manner surprised by it. As has been said, the question was directly made by the parties in their pleadings, evi. dence, and arguments, and in my judgment it was really the only question in the case for the jury. The motion must be denied and the plaintiff have judgment upon the verdict.
THATOH v. METROPOLE INs. Co.
caircuit Court, D. aJloraaQ. January 4, 1882.)
INSURANCE POLICy-PARTIES-RIGHT OF ACTION.
Where a person took out a policy of insurance against fire containing the provision that the loss, if any, should be paid to a third party, creditor of the insured, .. as his interest may appear," such third party has no right of action upon the maturity of the policy, it not being a stipulation for the payment of all the loss. Hartfora Ins. ao. v. DafJenport, 37 Mich. 613, followed.
On Demurrer to Complaint. Hugh Butler, for plaintiff. Charles d; Dillon, for defendant. HALLETT, D. J. This is an action upon a policy of ineurance. Plaintiff alleges that Emma V. B. Oray, on the twenty.first day of August, A. D. 1880, obtained of the defendant insurance on certain premises in the. town of Idaho Springs. The amount of the insure ance is not stated, I believe, but it is alleged that the policy provided for the payment to plaintiff in case of loss or damage by fire of some sum, as his interest might appear. It is alleged that plaintiff was a creditor of Emma Oray, and that the indebtedness was secured bya trust deed on these premises; that the premises were de'stroyed by fire, and plaintiff's loss thereby exceeds the sum of $2,000. There is no definite information in the complaint as to the amount of the insurance, or the amount of the indebtedness due plaintiff from the party insured. It does appear that the policy was taken out by Emma Orayand paid for by her. She paid the premium. Plaintiff demands judgment for $2,000. If it appeared in the complaint that insurance was taken out by this woman, and that the stipulation of the policy is that the loss, if any should occur, should be paid to the plaintiff, all of it-the entire
sum-a question would be presented as to the right of the plaintiff to recover on such an instrument which is not very well settled in the authorities. Perhaps the weight of authority is that in such case the plaintiff would be entitled to maintain the action; that is to say, if two persons contract for the benefit of. a third, the third party, although a stranger to the consideration, may maintain a suit upon that contract, But that is 'not the case as presented here. It is entirely consistent with the allegations of this complaint that the sum due the plaintiff was much less than the amount for which the policy of insurance was issued. And at all events, whatever the fact may be as to that, the policy of insurance provided for payment to the plaintiff as his interest might appear. At the time of insurance he was a creditor of the party taking out the policy, and his indebt· edness might be entirely extinguished or greatly reduced before the policy should mature. That was, perhaps, the reason for putting in the policy this clause in this phraseology, "payment should be made to him as his interest might, appear,"-that is, more or less, the sum due him, whatever it might be; and upon that no right of action can arise to the plaintiff, because it is not a stipulation to pay the plain· tiff the loss, all of it, whatever it may be, upon maturity of the pol. icy; and that must be the agreement to enable the plaintiff, under a stipulation of this kind, to recover in the action. That is very well exprest:led in an opinion in 37 Mich. 613, in the case of Hartford Ins. Co. v. Davenport. The court say: "We are also of the opinion that the plaintiffs below showed no right to sue upon the contract." And in this instance the language of the policy was substantially the same as in the case under consideration. The action was by a mort· gagee seeking to recover.
"The parties to this policy were Headley and the company. * · * The policy was to insure his interest, and not that of the mortgagees, and any money paid to them would enure to his benefit. They hold no assignment of the policy and sue as original parties. "No one can dispc.te the right of parties to a c0ntract to make money payable to a third person if they Bee fit."
That is the proposition as I originally stated it, that if one party eontracts with another to pay money to a third person, that may be a contra')t which the third person may sue on .
.. It is not important in this case to consider whether, if the policy'before us gave the mortgagees an exclusive right to the whole insurance money, they might not sue for it. In the pl'esentcase the policy does not purport to do any such thing."
That is the case "at bar., It covers property, ,not included.in/the mortgage, and only provides for payment to. them of the "insurance money due upon the property with which they were concerned. Upon. the trial it appeared that other property was burned,and the court excluded them from recovering beyond their own share, and Headley lost his share of the money entirely.
.. Now there can be no splitting up of the causes of actIon on 8 simple poticy. The party insured retained, by the terms of the policy itself, interests beyond the control of mortgagees. Their interests were, se"Veral and not joint. Under such circumstances it cannot be held that the mortgagees have any control of the policy which would authorize them to sue upon it. No doubt the company would be protected in paying them their share as equitable appointees, but they cannot .be .treated as trustees for Headley's benefit. He and not they must be held the legal owner of the policy, which stands in his name and was made for his benefit."
That is the rule here. This Mrs. Oray is owner of this policy, and entitled to sue npon it. Mr. Thatch bas no right of action whatever. The demurrer is sustained.
and others.March 29, 1882.)
(Circuit Court, E. D. Mi$s()ul'i.
A general denial is not equivalent to a general issue at common law. It only puts the plaintiff to proof of his sub.ltantial allegations. If the defendant has an affirmative defence in the nature of an avoidance he should plead it.
SAME-STATUTE OF LrMITATIO':S.
The statute of limitations cannot be set up as a defence under a general denial.
Where A. erected one wall of an expensive building upon land to which he believed he had good tJtle, but which was really owned by B., and H., with full knowledge of the fact that said wall was being erected, failed to claim. any interest in the land or make any objection to the erection of said wall_ thereon, held that he was thereafter estopped to claim title to'the ground upon which the wall stood.
Ejectment. Demurrer to answer. This is a suit to recover a strip of land 2t feet in width by 137 feet in depth, alleged by plaintiff to be a part of a lot set apart to him in certain proc(ledings in partition to which the Life Association
*Rcported by B. F. Rex, Esq., of the St. Louis bar.