Indiana Mutual Fire Insurance v. Coquillard

Blackford, J.

This was an action of assumpsit commenced in March, 1846, by the Indiana Mutual Fire Insurance Company against Coquillard and Smith. The declaration contains two counts.

The first count alleges that the defendants, on the 3d of February, 1838, made their promissory note to the plaintiff for the sum of. 584 dollars and 10 cents, payable in such portions and at such times as the directors of the plaintiff might direct; that the said directors, on the 25th of August, 1843, ordered an assessment of 40 dollars and 89 cents on said note; that due notice of the assessment was published; but that the defendants have not paid, &c.

The second count is on the same note. It alleges that, on the 9th of September, 1844, another assessment of 27 dollars and 74 cents was made on said note; that due notice of the last-mentioned assessment had been published ; but that the defendant had not paid, &c.

The defendants appeared to the suit, and Coquillard pleaded non-assumpsit.

At the March term, 1846, the parties submitted the *646 cause to the Court, and judgment was rendered for the plaintiff for 7 dollars and 73 cents, with costs.

J. L. Jernegan, for the plaintiff.

The plaintiff below is the plaintiff in error.

At the trial, the plaintiff introduced in evidence the note sued on, and proved the assessment as described in the counts respectively. The due publication of the notice mentioned in the second count was also proved. The defendants proved that the plaintiff, at the October term, 1842, had recovered judgment against them for 129 dollars and 92 cents, being the amount of two assessments on said note. The defendants also, in order to lessen the amount to be recovered, gave in evidence a deed of conveyance executed by said Goquillard and his wife to John D. Defrees, for nine-tenths of the property insured by the policy named in said note. That deed was executed before either of the assessments described in the declaration was made, namely, on the 12th of November, 1841.

The only question in the cause is, whether the said deed of conveyance had any effect upon the personal liability of the defendants arising from the payment of the note before us. And we are of opinion that it had not. The defendants continued, notwithstanding said deed of conveyance, personally liable on the note until the actual surrender to the plaintiff of the said policy. M‘Culloch v. The Indiana Mutual Fire Ins. Co., 8 Blackf. 50 . In the case now under consideration, it does not appear that there had been any surrender of the policy.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the submission of the cause inclusive set aside. Cause remanded for further proceedings. Costs here.