Giddings v. Seevers

Goldsborough, J., delivered the opinion of this Court. The appellant was the owner of certain cotton machinery in the Yalley Factory, at Harper’s Ferry, in Virginia. This machinery he sold to the firm of Stanbrough & Holliday, on a credit, and took their notes for the purchase money, to secure the payment of which they executed a deed of trust on the 31st day of March, 1851, to William T. Daugherty, in which they agreed to insure the said property to the amount of the debts secured by the deed, in some responsible office. All of the debts thus secured were paid except two notes to the appellant, one for $2,000, and the other for $1,124.

In pursuance of the agreement to insure, Stanbrough & Holliday effected an insurance in the Etna Insurance Company for $5,000 ; $1,500 on fixed machinery, and $3,500 on movable machinery, loss payable to James Giddings. This insurance was for one year, from the 12th day of October, 1850, to the 12th day of October, 1851, and renewed to 12th October, 1852, when it expired. The firm of Stanbrough & Holliday continued until the 15th day of January, 1852, when Mark A. Duke became a member thereof, under the name of Stanbrough, Holliday & Co., and the firm thus constituted effected two policies of insurance, for $1,000 each ; one in the Etna Insurance Company, and the other in the Protection Insurance Company, both policies embracing the movable machinery in the Yalley Factory, and admitted to be the same machinery covered by the first policy, in which it was provided that in the event of loss, the loss was to be payable to the appellant. 'The two policies, for $1,000 each, were taken out on the 20th of January, 1852, for one year, to the 20th of January, 1853. ³⁷³ On the 3d of August, 1852, Mark A. Duke, one of the new firm, made a purchase of cotton, for the use of the factory, from the appellees, and gave to them a note for $282.47, signed in the name of the firm, and on the 1st of November, 1852, executed another note, payable to the appellees, for $1,253.$4. This last note being “a note on which the plaintiffs put their names for a commission paid to them by Stanbrough, Holliday & Co., which last note was paid at maturity by the plaintiffs.” The policy for $5,000 in the name of Stanbrough & Holliday, was transferred on the 24th of January, 1852, to the name of Stanbrough, Holliday & Co. The property was destroyed by fire on the 19th of November, 1852, after tbe expiration of the policy of $5,000 to Stanbrough & Holliday.

On the 20th of November, 1852, Duke, signing the name of the new firm, gave to the appellees an assignment of each of the $1,000 policies, and afterwards, on the 10th of December, 1852, from some apparent apprehension that the first assignments were not in proper form, he gave them a new assignment of the policies, of which assignments the assignees gave notice to the insurance companies. On the 2d of December, 1852, Ira Stanbrough and John R. Holliday, describing themselves as the acting partners of the firm, assigned the money due on the $1,000 policies to William T. Daugherty, trustee in the deed of trust, for the benefit of the appellant; aud on the 18th of January, 1853, Daugherty assigned the said money to the appellant. The $2,000 was subsequently paid by the insurance companies to Messrs. Dobbin and Snyder, the counsel of the appellant and appellees, and by them invested for the benefit of the party who might he entitled to it.

That the legal right to this fund might he judicially determined, it ³⁷⁴ “was agreed that a case should be docketed in the Superior Court of Baltimore City to September Term, 1854, anda nar with the common Courts in assumpsit be filed with a plea of non-assumpsit, and all errors in pleading waived, and that the plaintiffs and defendant may give in evidence the assignments executed to them, respectively, by Stanbrough, Holliday & Co., and that this case shall determine which is entitled to the fund in the hands of the counsel. If it he determined for the plaintiffs, to the extent of the judgment if the fund be sufficient, said fund shall be paid to the plaintiffs, and if for the defendant, in like manner to the defendant. ’ ’ At the trial of the cause, after the deed of trust, the poliicies of insurance, assignments, and other instruments of writing, which it was agreed should be admitted in evidence, were submitted to the jury. John R. Holliday, one of the firm, was produced as a witness for the defendant, and testified that it was understood and agreed between all the members of the new firm,