Farmers' Bank of Wickliffe v. City of Wickliffe.

purpose the same is drawn, and out of what fund it is to be paid."

"Sec. 3626. It shall be the duty of the treasurer to receive and safely keep all moneys which shall come into his hands as city treasurer, for all of which he shall give duplicate receipts, one of which shall be filed with the city clerk. He shall pay out said moneys on warrants signed by the clerk and countersigned by the mayor, and not otherwise. He shall make quarterly settlements with the city clerk, and when approved by the council, shall be spread at large upon the record."

Dillon, in his work on Municipal Corporations (3d Ed.) section 501, says: "A creditor of a town is not bound to receive an order on the treasurer, but may sue upon his original cause of action. But if he does receive it, he is charged with the duty of presenting it to the treasurer, upon whom it is drawn, or of alleging facts which excuse presentment, before he can maintain an action upon it. As such an order is, in effect, an order by the debtor on himself, if presented and payment be refused, the town is liable instantly, and without notice of nonpayment." And in support of this text he cites from the opinion in Varner v. Nobleborough, 2 Greenl. (2 Me.) 121, 11 Am. Dec. 48, the following excerpt: "No sound reason can be given why a town should be subjected to the perplexity of costs of an action before the payee of an order will do his duty and request the payment. * * * There is an implied engagement to conform to established usage and present the order for payment." An action cannot be maintained on warrants drawn on a municipal treasurer without allegation and proof of their presentation to him, or of facts which will excuse the presentation. Central v. Wilcoxen, 3 Colo.

Claypool v. Continental Casualty Co.

566; East Union v. Ryan, 86 Pa. 459. The petition in this case shows that the appellant accepted and held city warrants or orders on the city treasurer for payment, and there is no allegation that it ever presented the warrants to the city treasurer, or demanded payment thereon; nor does it allege any facts which would tend to excuse presentation and demand. For aught that appears to the contrary, there may have been, at the time this action was brought, sufficient money in the treasury to pay all the claims of the appellant.

It follows, from the foregoing authority and on principle, that the petition was bad on demurrer, and therefore the judgment dismissing the petition must be affirmed; and it is so ordered.

CASE 78.-ACTION BY CLARENCE C. CLAYPOOL AGAINST THE CONTINENTAL CASUALTY COMPANY ON AN ACCIDENT INSURANCE POLICY.-October 8.

Claypool v. Continental Casualty Co.

Appeal from Warren Circuit Court.

JOHN M. GALLOWAY, Circuit Judge.

Judgment for defendant, plaintiff appeals — Affirmed.

Claypool v. Continental Casualty Co.

2. Same-Existence of Contract-Evidence. In an action on an accident policy stipulating that it should not be in force until delivered, and issued on an appplication stipulating that the insurance should not take effect until the application had been accepted and a policy issued, evidence held to fail to show that the application was received by insurer and acted on before insured was injured.

3. Appeal and Error-Harmless Error.-Where, in an action on an accident policy, the evidence failed to show a contract of insurance at the time insured received the injury, the error in transferring the cause to the equity side of the docket, and in failing to permit the jury to try all the questions raised by the pleadings, was not prejudicial, and must be disregarded under Civil Code, secs. 134, 756, requiring the disregard of errors not affecting the rights of the complaining party.

SIMS & GRIDER for appellant.

POINTS AND AUTHORITIES.

1. The matter of fraud alleged in the answer presented no defense, and the lower court erred in transferring the case to equity.

2. The defense that the plaintiff in his application for Commercial policy No. 834133, fraudulently represented that his weekly earnings exceeded his weekly indemnity under the policy, is not available in a suit for the loss of life or limb. (Aetna Insurance Co. v. Claypool, 107 S. W. 325.)

3. When pplication is made for insurance and the insurer accepts the remittance sent therewith, and applies same to payment of the premium, the contract of insurance thereupon becomes complete, and can not be rescinded except by mutual consent of the parties. (Hartford Life Ins. Co. v. Milet, 105 S. W., 144.)

4. Proof of claim under wrong policy, made by mistake of another, without the knowledge or consent of the insured, would be no bar to recovery on the proper policy, and could in no event work estoppel.

5. The issue as to whether the plaintiff unnecessarily exposed himself to the obvious risk of danger, having been found by the jury favorable to the plaintiff, the court will not disturb the finding. (Aetna Ins. Co. v. Claypool, 107 S. W., 325.) The case of Aetna v. Claypool was tried on same evidence as the case at bar.

Claypool v. Continental Casualty Co.

6. Where a jury trial is demanded upon a legal issue to be tried out of chancery, the finding of the jury is binding upon the court, and the court must either render judgment according to the finding, or set aside the finding of the jury and grant a new trial when the verdict is palpably against the evidence. The court can not ignore the verdict of the jury and decide the fact himself. (Morawick v. Martineck, 107 S. W., 759.)

ΜΑΝΤΟΝ MAVERICK, JOHN E. DU BOSE and JOHN B. RHODES for appellee.

POINTS AND AUTHORITIES.

1. The appellant and appellee agreed that the paper sued on should not become effective until the application was received, examined and approved and the policy written up, signed by the policy-writer, and delivered. When this was done the appellant had lost that part of his body for the loss of which this suit was brought. The minds of the parties had not met and there was no contract. (Parson on Contracts, vol. 1, p. 476; N. Y. Life Ins. Co. v. Long's Admr., 26 Ky. L. F.; Dickey v. Continental Casualty Co.,, 89 S. W., 436, p. 6.)

2. There was no finding of the jury that would have authorized a verdict for appellant.

3. The court did not err in transferring the cause to equity nor in giving judgment for appellee.

4. It was the duty of the lower court and of this court to disregard any error or defect in the proceedings which did not affect the substantial rights of the appellant. (Civil Code, sections 134 and 756.)

ing.

OPINION OF THE COURT BY JUDGE LASSING - Affirm

Appellant, Claypool, in the summer and fall of 1905 was living in Dyersburg, Tenn., where he was the local agent of the Provident Savings Life Insurance Company on a salary of $50 per month. In addition to this employment, he represented the Continental Casualty Company of Chicago as its local agent. In September of the same year he took out with the said

Claypool v. Continental Casualty Co.

casualty company a policy known as an "industrial" policy, by the terms of which the liability of the company was limited to $700 for loss of life by accident, and one-half of this sum for the loss of a hand. On the 9th of November of the same year he wrote a letter to the Continental Casualty Company, in which he made application for a policy with said company on what is known as the "commercial" plan. The liability of the company on this policy was limited to $5,000. At the time this last application was made out, he had a policy of accident insurance on his life for $5,000 in the Aetna Insurance Company. The application for the commercial policy, which was dated November 9th, was received by the home office of the company in Chicago on November 11th. As the applicant already had a policy in force with their company on the industrial plan, it declined to accept the application on the commercial plan during the life of the policy on the industrial plan, and so wrote the applicant, Claypool, telling him that they would not issue another policy, but suggested that, inasmuch as the policy he then had would expire on December 1st following, the matter should lie over until that time; that they would hold his check for $3.75, which he had sent with his application on November 9th, in their "suspense account." Claypool testifies that he received this letter, in which his application was returned to him, on the 14th of November, and that on that day, in the early morning, he wrote another letter to the company, in which he returned the application which he had originally made, and notified the company that he understood that, when he made the application for the commercial policy, in so doing he canceled the industrial policy, according to its terms, and that the company could, therefore, either return