NEW ORLEANS INS. 00.
INS. CO. 1
(Circuit Court E. D. Mis8ouri.
FIRE INSURANCE-NoTICE TO BROKER.
April 11, 1885.)
Where a policy of insurance procured through a broker contained the follow· ing conditions, viz. : "If any broker or other person than the assured have procured the policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the a88ur'ed, and not of this company, in any transac· tion relating to the insurance. This insurance may be terminated at any time by reqnest of the assured, or by the company, on giving notice to that effect;" held, that notice from the company to the broker who procured the policy, of an election to terminate the insurance, was not notice to the assured. A verdict and judgment thereon will 1I0t be set aside upon the p;round that the defendant has been prevented, by a mistake, and without fauH, from being represented at the trial and making his defense, when the defense which lie sets up in alIhlavits in support of his motion to set aside is entirely new, and not disclosed by the original pleadings.
PRACTICE-MoTION '1'0 SET ASIDE VERDICT-NEW DEFE)lSE.
Motion to Set Aside the Verdict and Judgment. Suit upon a fire insurance policy taken out by the assured through a broker. The policy contained among its conditions the following:
"If any broker or other person than the assured have procured this policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured, and not of this company, in any transaction relating to the insurance. 'fhis insurance may be terminated at any time by request of the assured, or by the company, on giving notice to that effect."
The answer contains a general denial, and states that the defend· ant had terminated the insurance by notice to the plaintiff according to the terms of the policy, before any loss occurred. At the trial it appeared that the defendant had atttempted to terminate the insurance before the fire, by giving notice to the broker who procured the policy, but that the plaintiff had received no actual notice of the defendant's desire to terminate the insurance until after the fire occurred. The defendant was not represented at the trial. The verdict was for the plaintiff. The defendant moved to set aside the verdict, and filed affidavits tending to show that the attorney's absence had been caused by a mistake, and that it had a defense not set up in its answer. G. M. Stewart, for plaintiff. Eleneious Smith and E. H. Gary, for defendant. TREAT, J., (orally.) In the case of Kehler v. New Orleans Ins. Go. there is a motion to set aside verdict and judgment. The original defense to the case was that, under the terms of the policy, it could be canceled on notice given, and that said notice was given before the loss. On the testimony submitted, it appeared the notice was not given. I supposed the contention would be that the broker who negotiated the insurance must be treated as if he were the plaintiff
by Benj. F. Rex, Esq., of the St. Louis bar.
himself, or his agent for receiving notice. He is not so. That question was before the supreme court and decided in the case of Grace v. Insurance Co. 109 U. S. 278; S. C. 3 Sup. Ct. Rep. 207. His functions' terminated when he effected the policy. Now, this motion goes a step further. It sets up in the affidavit an entirely new defense, which, it seems, was not thought of before, to-wit, that the policy executed and delivered to the plaintiff was only on condition that the parent company should assent thereto, which it never did. That is something that was not in the original pleadings. The party had abundant opportunity to do that originally. Now he wishes to set up a new defense, and reopen the case upon a theory which is utterly inconsistent with his own correspondence on file. The motion will be overruled.
M.ITCHELL V. CATCHINGS. 1
(Circuit Oourt, E. D. Missouri.
April 1&, 1885.)
N OTES-OPTIONS-NOTICE-REASONABLE TIME. Where a demand note, given as security for a continuing option transa.ctlon, but valid on its face, was bought in the regular course of busmess and for full value, 23 days after date, by one who knew the payees of the note dealt in options, and suspecled, but did not know, that it h<ld been taken in some option deal, held, (1) that the note had been negotiated within a reasonable time; (2) that the purchaser was a bonafide holder without notice.
Hugo Muench, for plaintiff. Phillips J; Stewart, for defendant. BREWER, J., (orally.) In Mitchell v. Catchings, action on a note for
$5,000, there is really only one question, and that is whether the plaintiff was a bona fide holder, before due, of the note in controversy. In its inception the note was a note given as security for option deals,-a pure gambling transaction,-a note void as between the parties beyond any question. The plaintiff claims to be a bonafide holder before due. note is a demand note, dated November 13th, indorsed to plaintiff, December 6th. No demand was in fact made prior to transfer. While it is true a letter was written by McCormick, of the firm of Smith, McCormick & Co., the payees of the note, yet there was no presentment of the paper to the maker, no demand, within t.he rules of the law-merchant. Twenty-three days elapsed !Jetween the making of the paper and the transfer. Is that such length of time that the court is justified in presuming a demand, and
F. Hex, Esq., of the St. Louis oar.