Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-02-06
FIGHT OVER A POLICY
INTERESTING INSURANCE CASE
ARGUED IN THE U. $. COURT.
WAS TIE PROPERTY INSURED I?
Claim Tint the Terms of Contract
Had Been Accepted, Hut the Policy
Had Not Been Delivered when the
Fire Occurred.

E1Fc OccuTEtos
The United States Circuit Court Of APP
peals was in session again yesterday.
Judges Goff, Slmonton, and Brawley on
the bench.
The first case called was No. 2OS-
Phoenix Insurance Company, of Brook
lyn, appellant VS.. j. u. Schultz re-
ceiver OF the Franklin Brass Company,
appellee, appeal from the Circuit Court
of the United States, Western District
of Virginia. The case was argued by
Z. j. kirkpatrick, Of Lynchburg, and
John NJ. Slaton. of Atlanta, for the APP
pellant, and by d. b. Munford and Judge
w. r. Staples, both of this city. for APP
pellees, and submitted.
This Is a suit for specific performance
of a parol contract of insurance, alleged
TO have been made by the Franklin Brass
Company, through its agents. j. b. Moore
& Co., OF Richmond; p. ]. Otey & Co.,
OF Lynchburg Va, agents of the respond
ent insurance company.
PROVISIONS OF THE CONTRACT.
The contract is alleged TO have been
made by letter and Geographic corre-
spondence between the agents of the two
companies. Moore x Co., I'm the latter
part of the month Of July, 1891, applied
to Otey & Co. to procure fire insurance
on the property of their principal, the
Franklin Brass Company. of which COM
plainant in this suit is the receiver, for
the sum of $4,000 The property on which
this insurance was sought consisted Of
It'll
Botetourt county, Va, occupied by the
complainant as manufacturer of and
dealer in brass, tin, and other goods;
the machinery, materials, and supplies
contained in said building.
1t is claimed that certain correspond
ence by mail and telegraph between j.
b. Moore q Co., the agents of the COM
plainant, and T.. j. Otey & Co.. agents OF
the respondent, constitute the contract
of insurance. The bill alleges that p.
j. Otey & Co. had issued policies of in
surance in different companies to the
amount of $4,000 on the property. which
policies had been delivered to the Frank
lin Brass Company; that these policies
were not satisfactory 10 several of the
companies because they were blanket i'm
form; that Otey * Co. requested Moore
q Co. to change the form so as TO make
it more specific, and TO return the policies
that had been delivered, so that new
policies might be written, according 10
the required specific form: and that,
with these objections removed, they
thought the insurance could be effected:
that Moore q Co. prepared the required
form, and, on receipt of a telegram from
Otey q Co., on September 3, 1891, de-
posted the same in the post-oftice at
Richmond addressed to =. j. Otey K
~ fhnf 10 tf-ro
Otey * Co., as the agents of the insur-
ance company, and was accepted by them
without objection; that a short time
after the fire j. Il. Moore q Co., the
agents of the Franklin Brass Company.
applied to Otey & Co. for the policy.
which they had agreed to issue; and. for
the name of the company, for which they
were acting, and, at the same time. ten
dered them the premium therefor; that
=. j.. Otey & Co. refused TO deliver the
policy, and refused to give the name of
the company; that the complainant be-
came informed that it was the Phoenix
Insurance Company, Of Brooklyn, for
which Otey * Co. acted and spoke in
their telegram of September 3. 1891.
1t alleges that in consideration Of the
premium of $50, which the Franklin Brass
Company agreed 10 pay, the Phoenix In
surance Company did agree TO in
sure for one year. from September 8
1881, the Franklin Brass Company against
loss or damage by fire to the said
property in the sum Of $4,000
The bill prays that the respondent be
required to specifically perform its agree
ment to insure said property and to pay
to the complainant the sum OF $4,000
the amount assured with interest
thereon, less the premium.
SIDE OF THE DEFENCE.
The respondent denies that said pre-
tended contract. as set forth in said
bill OF complaint was ever made or
agreed upon between plaintiff and de-
PENDANT company, it being well under
stood and agreed between their said re-
spective agents that such should not be
the case until the same was referred
to and approved by this defendant COM
pany, which never occurred by reason
of the delay in the reception by said
Otey & Co. of the said letter Of j.
b. Moore & Co.. dated September 3, 1891,
which delay was caused by the failure Of
said j. b. Moore & Co. to properly Pre-
pay the postage on said letter, so that
the delivery to Otey & Co. did not occur
until after the property to be insured had
been destroyed by fire.
1t was the opinion Of the cours below
that the evidence established the con-
tract sought to be enforced by The COM
plainant, and that the risk assumed in
said contract of insurance was i'm force
at the time the loss by fire occurred.
A BUILDING FUND CASE.
The second case called for argument
was No 2Oi, the Liberty Perpetual Guild
ing and Loan Company, appellant. VS..
the Furbush & Son Machine Company
ct al, appelees; appeal from the Cir
cult Court of the United States for the
Western District of Virginia. The cause
was argued by NJ. p. Burks, of Bedford
City, for appellant, and by S. v Southall.
of Charlottesville for appelees, and