of defendant in their dealings with the insured.
For the reasons stated, the endorsement on the back of the
sight draft, signed by DeWitt, containing the printed words, "* *
* in full satisfaction, final settlement and compromise of all
claims and demands against the Home Insurance Company * * *,"
should not in good conscience be held to deny the insured the
right to any further recovery that he may have lawfully and
equitably been entitled to. The same was signed by DeWitt under a
misapprehension of the law and facts on the representation of
defendant's agents that he must do so in order to obtain
settlement for the portion for which they conceded liability.
This amounted to a withholding from him of certain facts and
information, within its knowledge, contrary to what I believe to
have been the moral and legal duty on the part of the insurer to
freely and honestly advise the insured of all pertinent facts in
relation to his rights in the "sealed" corn. The proof of loss
furnished by the defendant contains the statement that 4,215
bushels of the insured corn had been "sealed", and a recital that
it was not insured. Defendant freely concedes that this corn was
originally covered by the insurance policy and the only reason
defendant now claims that it was not insured was because it had
been "sealed" and covered by the mortgage to the CCC.
Under such circumstances, it is my deliberate judgment that the
insured is not bound by such recitals in the proof of loss or by
the printed language in the sight draft, purporting to release
defendant from all further liability. I do not wish to be
understood as holding that when a man signs a document without
reading it and without knowing its contents that he would not
under any circumstances be bound by it; but I hold only that
under the circumstances here present when he signed the proof of
loss and endorsed the check that he is not bound by the language
indicating non-liability of defendant for the "sealed" corn or
the language purporting to release defendant from further
liability for the "sealed" corn.
The Assignment to the United States Government
In seeking recovery against the defendant, plaintiff relies
solely upon an assignment, executed by the insured on June 8,
1953, assigning to the CCC all right of action that he might then
have in any claim against the defendant. It is suggested by
defendant that this in itself was a violation of the terms of the
insurance policy which contained a clause that the assignment of
the policy should not be valid except with the written consent of
the company. In my judgment this contention is unsound for the
reason that the insured has never made any assignment of the
insurance contract but has only undertaken, after the loss by
fire, to assign to the plaintiff any right of recovery that
existed in him.
It is further contended by defendant that the insured had no
right under the insurance contract at the time of the assignment,
and therefore he assigned nothing to the plaintiff. This would be
obvious, of course, if defendant's other contentions be accepted.
Having concluded that the "sealing" of the corn did not void the
insurance contract and that the insured still retained an
insurable interest therein, and having concluded that the alleged
release, caused to be executed by the insured on
misrepresentations by the defendant, is void and of no force and
effect, I reach the ultimate conclusion that the plaintiff is
entitled under its assignment to a recovery for the loss of the
4,215 bushels of "sealed" corn. I, therefore find that plaintiff
is entitled to recover the sum of $6,238.20, together with
interest thereon in the sum of $1,065.68, or an aggregate amount
The facts in the case of United States v. Springfield Fire &
Marine Insurance Company, D.C., 107 F. Supp. 753, affirmed in 8
Cir., 207 F.2d 935, are so widely different from the facts here
that they constitute no authority for a holding against the
government in this case. Indeed, the Court there held that
there was never any insurance coverage upon the "sealed" corn,
and in this case it is conceded that the insurance contract
covered the "sealed" corn prior to its sealing.
The foregoing may be taken as and for the Court's findings of
fact and conclusions of law. Judgment rendered in favor of
plaintiff and against defendant for the sum of $7,303.88 and
costs of suit.
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