Wettengel v. Harrison County Farmers Mutual Fire & Lightning Insurance

272 N.W. 435, 223 Iowa 1
CourtSupreme Court of Iowa
DecidedApril 6, 1937
DocketNo. 43584.
StatusPublished
Cited by2 cases

This text of 272 N.W. 435 (Wettengel v. Harrison County Farmers Mutual Fire & Lightning Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wettengel v. Harrison County Farmers Mutual Fire & Lightning Insurance, 272 N.W. 435, 223 Iowa 1 (iowa 1937).

Opinion

*2 Kintzinger, J.

Plaintiff had a fire insurance policy with the defendant company on a dwelling near Dunlap, Iowa. The dwelling was completely destroyed by fire on October 31, 1931. Shortly thereafter, plaintiff, acting through his brother, made an adjustment of the loss with the defendant company in the sum of $1,000, and due proof of loss was furnished the defendant.

Thereafter, on December 19, 1931, the defendant company wrote the following letter to the insured at Maywood, Illinois:

“Having received no word from you in regard to your loss by fire * * *, we are enclosing a check for $1,000 * * * being payment in full under our policy No. 20590. It was my understanding with your brother that you are to take the matter up with the holder of the mortgage, Alice Satterlee, Gales Ferry, Connecticut, and see if she would furnish us with a release. We received no word and it was necessary for us to make the check payable to you and the mortgage holder. It will be necessary for you to get the endorsement from the mortgagee before you can cash this check. If it would be more satisfactory, if you could furnish us with a release from Alice Satterlee, you could return the check to us and use will eancel it and make a new one direct to you. * * * (signed) C. L. Strong, Sec’y-” (Italics ours.)

Upon receipt of this letter, the plaintiff returned the joint check to the defendant, and pursuant to their letter of December 19, asked the defendant company to send him a form of release for Alice Satterlee to sign, so that a cheek payable to plaintiff alone be issued. On December 26, 1931, the defendant compány acknowledged return of the check and receipt of his letter, by the following letter sent to plaintiff at Maywood, Illinois:

“We are in receipt of your letter with the cheek for the $1,000 returned and in accordance with your request, we are enclosing the release * * * which if you will have the Mortgagee sign and return the same to us, we will be pleased to issue you another check made payable to you to take the place of the one which was made payable to you and Alice Satterlee, Mortgagee. Hoping this is satisfactory, I am * * * C. L. Strong, Sec’y.”

Thereafter, plaintiff received word from Ed Satterlee, agent of the mortgagee, advising him that the mortgagee would make no claim for any part of the insurance money. This information *3 was communicated to appellant and payment of the amount agreed upon was requested. At that time the insurance company refused to pay more than $600, claiming that the amount of the loss by fire did not exceed that amount, but no objection to its payment was made for want of a written release from the mortgagee. Payment of the full amount was refused, and on February 27, 1933, plaintiff commenced this action to recover the $1,-000 settlement alleged to have been agreed upon in December, 1931. This action came on for trial on March 27, 1934.

At the close of the evidence, defendant moved for a directed verdict upon several grounds. This motion was overruled.

Thereafter, on April 25, 1934, the case was reopened on motion of plaintiff to permit the introduction of the formal written release signed by the mortgagee, upon plaintiff’s statement that it had not been received until after submission of the case. The following release, Exhibit X, was then introduced by plaintiff:

“Release.
“Gales Ferry, Conn., Jan., 1932.
“I hereby waive all right which I may have to the One' Thousand Dollars ($1,000) due to Frank J. Wettengel, Jr. from the Harrison County Farmers Mutual Fire and Lightning Insurance Association, because of loss by- fire under policy No. 20590, of insurance, held by the said Frank J. Wettengel, Jr., said property being located in Section Thirty Six (36) Township Eighty Two (82), Range Forty One (41), Crawford County, Iowa, in said Insurance Association. I waive and release said Harrison County Farmers Mutual Fire and Lightning Insurance Association from any liability to me, as Mortgagee of the property upon which the loss by fire occurred and consent that said Insurance Association pay to the said Frank J. Wettengel, Junior, said loss in full. (Signed) Alice Satterlee, Mortgagee.” (Duly acknowledged.)

In his petition, plaintiff substantially alleged the foregoing facts. In addition thereto, he alleged that at the time the check for $1,000 was returned to the defendant, it was returned for only one purpose, and that was for the purpose of having a new cheek issued payable to the plaintiff alone when it was satisfactorily made to appear that Alice Satterlee, mortgagee, made no claim to the insurance company.

The case was finally submitted on March 27, 1934, and de *4 fondant renewed its former motion for a directed verdict upon the same grounds. This was also overruled, and on March 18, 1935, judgment was rendered in favor of plaintiff for the amount claimed, and defendant appeals.

Only two assignments of error are alleged, the first being as follows:

“Div. I. The court erred in overruling grounds 3, 5 and 6 of defendant’s Motion for Directed Verdict, (Abstract pp. 35, 36, and 37), ground 2 of defendant’s Motion in Arrest of Judgment, (Abstract pp. 46 and 47), grounds 4, 5, 11, 15 and 18 of defendant’s Motion for New Trial, (Abstract pp. 47, 48, 49, 50, 51, 52, 53, 54 and 55), and in finding that a contract of settlement had been made between the parties and in rendering judgment against the appellant thereon to all of which due exceptions were taken, (Abstract p. 37, line 6; p. 40, line 25; p. 45, lines 30 and 31).”

Then follows the brief point alleging that “these findings and rulings were erroneous because there was no evidence whatever of a contract of settlement,” with citations supporting the brief point.

The second assignment of error is alleged in the following language:

“Div. II. The court erred in overruling ground 4 of defendant’s Motion for a Directed Verdict, ground 2a of defendant’s Motion in Arrest of Judgment, ground 5f of defendant’s Motion for a New Trial, in finding that the alleged contract of settlement was supported by a consideration, and in rendering judgment against the defendant thereon, to all of which due exceptions were taken.”

Appellee contends that these assignments failed to comply with Rule 30 because they contain no record of the specific errors complained of, and because they contain no specific reason why they are erroneous, and, therefore, bring no matter before this court for review. A compliance with Rule 30 requires not only a record of the facts constituting the errors relied on, but also the reason or basis for the complaint.

Rule 30 of this court provides that:

‘ ‘ The appellant shall * * * state his * * * error relied upon for a reversal, and shall set out so much of the record as refers *5 thereto, together with the ruling of the court thereon;

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Related

Pickett v. Wray
280 N.W. 519 (Supreme Court of Iowa, 1938)
Mosher v. Snyder
276 N.W. 582 (Supreme Court of Iowa, 1937)

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Bluebook (online)
272 N.W. 435, 223 Iowa 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wettengel-v-harrison-county-farmers-mutual-fire-lightning-insurance-iowa-1937.