October 29, 1925. *Page 18
The opinion of the Court was delivered by "This was an action commenced on April 9, 1923, in the Common Pleas Court for Aiken County, on two promissory notes aggregating $367.85, and attorney's fees, alleged to have been given in payment of a policy of fire insurance, and was tried before Judge Henry and a jury on the 1st day of December, 1924, resulting in a directed verdict for the plaintiff in the sum of $367.85 and $25 attorney's fees. There was no testimony offered as to attorney's fees.
"COMPLAINT "Sets out two causes of action on promissory notes, alleging aggregate sum of $367.85 and attorney's fees due; that one note was given in payment of first installment on insurance premium, based upon application made same day; and second note being for next four annual installments of premium for insurance, based upon the same application.
"ANSWER "Denies all allegations of complaint not specifically admitted; admits execution of application for insurance and notes, but sets up as a defense that the delivery to the plaintiff was a conditional delivery, the condition being that the application should be accepted and policy issued; denies liability, and pleads failure of consideration, by reason of the fact that application was never accepted by plaintiff, and no policy issued, or delivered, to defendants so as to make a contract between them, as contemplated in application and notes.
"NOTICE "Notice dated November 18, 1924, to plaintiff's attorney to produce upon the trial letter from defendant, Thomas Brown, to Hartford Fire Insurance Company, dated about September 7, 1921, or secondary evidence would be offered to prove same. * * * *Page 19
"The Court: He was insured from the 23d of August, and could have brought this action and compelled the company to pay his loss. I think the policy could be issued at any time. I think the policy is delivered when they accepted the insurance, and that is what I would have held if they had been suing here on a loss. I don't see any question for the jury. I think they have accepted it, and there is no time limit there, and I think that property is insured now, or for whatever time it runs to. If that property had been destroyed after August 23d, I would have had to hold that the company was liable.
"Mr. Morgan: The notes provide for a reasonable attorney's fee, and, while I have not proven any amount as reasonable, I think the Court can fix that.
"The Court: I will give you a fee of $25. I will cut it in half from the $50. Write out your verdict.
"The Court: There is nothing, gentlemen of the jury, to submit to you. I cannot conceive how the Court can be wrong in this case, and I think I have to direct a verdict. If you gentlemen make a mistake on the facts, it could not be corrected. There is a good deal of complaint in the country about these contracts, but farmers will sign contracts without some good lawyer telling them what to do. Go on and pay a lawyer $5, and save yourself a good deal of annoyance."
The exceptions are as follows:
(1) "It is respectfully submitted that the presiding Judge erred in directing a verdict for the plaintiff; the error being there was a question of fact that should have been submitted to the jury, to wit: Did the plaintiff accept and approve the application and notes of the defendants and issue to them a policy, so as to make a binding contract between them, this fact being disputed by positive testimony, and when the application specifically stipulated that it was subject to the approval of plaintiff, and notes stipulated that they should not be valid unless a policy was issued by plaintiff?" *Page 20
The second exception was withdrawn.
(3) "It is respectfully submitted that the presiding Judge erred in holding from the testimony that a valid contract of insurance was entered into on the day the application was signed, August 23, 1921, and that the issuance of a policy was not necessary to the making of the contract, and holding from the testimony that plaintiff had accepted the application, the error being the notes and application of the defendants offered in evidence by the plaintiff show that the notes shall be void unless a policy is issued by the company, and that the application is subject to the approval of the company; and the agent who took the application and notes, by his own admission on the stand, could not bind the company, but only the head office in Atlanta could do so."
The testimony was susceptible of more than one inference.
The judgment of the Circuit Court is reversed, and the case remanded for a new trial.
MR. JUSTICE WATTS and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.