Demmer v. American Insurance (110 Ill. App. 580, 1903)

Mr. Justice Farmer

delivered the opinion of the court.

Abe Adler was, in 1899, and had been for some time prior thereto, conducting a gent’s furnishing goods and merchant tailoring business in Elgin. He had his stock insured for $6,000. This was divided between three companies: appellant, the American Insurance Co. of Newark, New Jersey, the Insurance Company of North America and the North British Mercantile Insurance Company/ each writing $2,000.

On the first day of August, 1899, a fire destroyed a portion and damaged the remainder of the stock. Soon afterward Adler, with the assistance of a man who testified he had had large experience in matters of that kind, made an inventory of the stock, and estimates of its value before the fire and the damage thereto by the fire. This appraisement showed the stopk to have been worth before the fire $6,185.62 and the loss and damage $4,396.56. No appraisement had been made by the insurance companies and the loss not having been adjusted, September 9th, Adler made and forwarded to appellant proofs of loss in which he gave the value of the stock and the loss at the above named amounts. For some reason no settlement was made on the basis of these proofs and on September 26th an agreement in writing was entered into between the three insurance companies and Adler according to certain provisions of the policies, to submit to appraisers the question of determining the amount of the loss. October 6th, the appraisers so selected reported the result of their investigations in writing, fixing the value of the stock before the fire at $6,500 and the loss at $4,500, and within a few days the Insurance Co. of North America and the North British Mercantile Co. paid their share of the loss, $1,500 each. About a month later and before the American Insurance Co. had paid its share of the loss, as we understand the testimony—at any rate, about the time it paid it, a Mr. Hatfield, who was the company’s agent and adjuster, called at Adler’s store where he had the damaged stock, which Hatfield called salvage, and claimed his company had the right under their policy, after paying the loss to take the salvage. The substance of the provision of the policy referred to is, that it shall be optional with the company to take all or any part of the salvage at its ascertained or appraised value. It is not and could not be successfully contended, that this provision of the policy of itself operated to vest title in the American Insurance Co. While it gave the company the right to claim the property, if the insured refused to give it up, the title remained in the insured and the company could not maintain an action of replevin, but would be left to its action for breach of contract. Hatfield at first proposed to take all the stock but the hats and caps, to which Adler objected, and finally Hatfield proposed to take it all at $1,218.82.' At this time no agreement was reached, Adler claiming the damaged stock was worth $2,000, as shown by the report of the appraisers. It is claimed by appellant that subsequently Adler agreed to accept that amount, but after so agreeing refused to give up the goods. Hatfield on behalf of his company, after paying its share of the loss, tendered Adler’s attorney the $1,218.82, and upon his refusing to accept it, deposited the money in a bank subject to Adler’s order and brought a replevin suit for the goods and took possession of them by virtue of the writ in that case. Appellant claimed the stock was $248.27 short of what it should have been and withdrew that amount from the sum deposited in the bank subject to Adler’s order, thus reducing the tender to $970.55.

A trial of the replevin suit was entered upon, but before it was concluded the plaintiff, the American Insurance Co., dismissed the suit and a judgment was entered awarding Adler a return of the property. Upon the insurance company failing to return it, this action was brought on the replevin bond.

Defendant pleaded that no trial was had on the merits of the replevin suit, property in the American Insurance Co., and a denial, not under oath, of the instrument sued on. On these pleas issues were joined and a trial had, resulting in a verdict for plaintiff for $2,286.97 damages. Plaintiff remitted $150, and the court, after oxmrruling a motion for nexv trial, rendered judgment on the verdict for plaintiff for $2,438, debt to be discharged upon the payment of $2,136.97 damages.

After plaintiff had begun this suit, and before it was tried, the American Insurance Go. filed a bill in chancery to correct the award of the appraisers on account of an alleged mistake, and secured an injunction restraining the prosecution of this suit till the chancery case xvas heard. Upon the hearing of the chancery suit a decree was entered finding the appraisers had made a mistake, reforming the award made by them and finding that the value of the stock before the fire was $5,718.82, and the loss and glam-age $3,718.82. The mistake resulted from the failure of the appraisers to give effect to an agreement between Adler and the insurance companies as to what the axvard should be on goods that could not be identified. It thus appears that Adler had been paid by the three insurance companies $781.18 more than the damages sustained.

It does not appear from the evidence that the American Insurance Co. pver caused an inventory to be made of the value of the salvage, and just upon what basis it arrived at $1,218.82 as its value does not appear from the testimony. A rather remarkable coincidence is, that this is the exact amount remaining after deducting $781.18, the amount overpaid Adler by the three insurance companies from $2,000, the amount he claimed the salvage xvas worth, and which appears to have been the value placed upon it by the appraisers. But as only one-third of the $781.18 was paid by the American Insurance Co., it would clearly not have the right to appropriate and treat the "whole sum as part payment on the salvage, and counsel do not claim this ri