Minneapolis Threshing Machine Co. v. Darnall

Citations

• 13 S.D. 279
• 83 N.W. 266
• 1900 S.D. LEXIS 143

Syllabus

<p>1. Plaintiff in replevin claimed the property in controversy under a chattel mortgage given by defendant to secure the payment of the purchase . price. When the mortgage was given, defendant was required to insure the property, for the purpose of increasing the security, and plaintiff contracted to procure the insurance. Held, that damages sustained by defendant by plaintiff’s breach of its contract to procure insurance could be pleaded as a counterclaim, under Comp. Laws, % 4915, providing' that a counterclaim must arise out of the contract or transaction set forth in the complaint.</p> <p>2. Defendant’s counterclaim was based on plaintiff’s breach of its contract to procure insurance on property claimed under a chattel mortgag'.e, There was evidence that plaintiff, by its agent, required defendant to insure the property, for the purpose of increasing the security; that defendant signed an application for insurance at the time, and delivered it, together with a note for premium, to plaintiff; that defendant received no notice in regard to the insurance until after the fire, which occurred about four months after the application was made, when he received a letter from plaintiff, saying that it was still trying to find a company to take the risk, and, if it did not succeed, the note would be returned, which was done about two weeks later. The application was on a printed blank addressed to plaintiff, requesting it to procure insurance for defendant on the property, with a direction that the policies should be written payable to plaintiff as its interest might appear. Held, that the question whether there was an implied contract to procure the insurance was for the jury. ,</p> <p>3. Whether the use of an engine for power in a feed mill increased the hazard, and avoided a policy insuring it while stored and not in use, was a question of fact for the jury, where there was evidence that it was not stored at the time of the fire, blit was contained in the mill where i