Opinion
28836.
DECIDED JUNE 21, 1941.
Complaint on fire policy; from Newnan city court — Judge Stallings. October 24, 1940.
Stanford Arnold, for plaintiffs.
Smith, Smith Bloodworth, Walter D. Sanders, for defendant.
1. Where A obtains a fire-insurance policy in his name only on the property belonging to himself, B, and C, and the children of C, and the company knew that fact, and after loss A, relatively to his own interest, settles with the company and surrenders the policy, A can not thereafter maintain an action against the company for his own benefit or for the use of others.
2. Where a suit is brought in the name of one person suing for the use of another a cause of action must be shown to exist in favor of the nominal party.
3. Estoppel is not a substitute for reformation.
4. In Georgia, by statute, a contract of fire insurance (the insurance policy) must be wholly in writing. Such a contract can not be made partly in writing and partly in parol. Athens Mutual Insurance Co. v. Evans, 132 Ga. 703 (4) ( 64 S.E. 993).
5. A contract required by law to be in writing can not be reformed by estoppel, where the estoppel by which it is proposed to reform the contract is sought to be proved by parol evidence.
6. A suit seeking to recover damages for loss of a house occasioned by fire is in no sense an action for the recovery of money "had and received" or the equivalent of the money.
DECIDED JUNE 21, 1941.
The plaintiffs (for convenience called B, C, and C's children) brought this suit in the name of Eddie Patterson (hereinafter called A) for their sole use and benefit, by virtue of a contract of fire insurance, against the National Union Fire Insurance Company. The policy insured a certain dwelling at 85 West Washington Street in Newnan, Georgia. The plaintiffs alleged: A's wife, as executrix of the estate of Nicie Boyd, was in possession of the house from 1911 until 1933, and insured this dwelling with this same local agency. At the time the policy was issued in November, 1938, in A's name alone, A owned one-third interest in the house, B one third, and C and C's children one third. From 1933 until the house burned March 11, 1939, A occupied the house under an agreement with B, C and C's children that instead of rent A would pay all the taxes, repairs, etc. A has paid premiums to the defendant for five years or more and defendant's agents actually or constructively knew A did not have full title. A, being an illiterate negro laborer, could not read or understand the conditions in the policy with reference to unconditional and sole ownership, all of which was known to defendant's agent. A was trustee for the plaintiffs, and insured the house for their benefit in consideration of his occupancy thereof. When the house burned the company paid to A $416.66 as his interest in the property, and A surrendered the policy to the defendant. It is further alleged that there has been no refund or offer to refund the premiums by the company, and that the company is estopped to declare the contract void by reason of the stipulation with reference to unconditional and sole ownership of the property insured because defendant has waived any rights thereunder by its conduct and acts in accepting the premiums, with full knowledge and notice of all the facts concerning the property, for four or more years previously. A was known by the defendant to be uneducated and the defendant made no inquiry of him as to his interest or title in the property insured, as was its duty to do. The defendant is estopped by its payment to A of one third of the amount of insurance from voiding this contract as to the plaintiffs' rights. There was no consideration for A's release of the plaintiffs' rights, and the company is estopped to deny the plaintiffs' rights to bring this action. The plaintiffs excepted to the sustaining of the general demurrer to the petition.
The plaintiffs sued at law on a written contract of fire insurance, in the city court of Newnan which is a court of law and can not administer affirmative equitable relief. The grounds of demurrer mentioned above are "(a) No cause of action is set forth against the defendant. (b) There is no privity of contract by the plaintiffs and the defendant. (c) There is no proper party plaintiff in said case." Here there was a fire-insurance policy in writing naming the defendant insurance company as one party and A, whose property was described therein as being insured, as the other party. The plaintiffs in this suit were not mentioned in said policy. Code, § 56-801, declares: "The contract of fire insurance is one whereby an individual or company, in consideration of a premium paid, shall agree to indemnify the assured against loss by fire to the property described in the policy, according to the terms and stipulations thereof. Such contract, to be binding, shall be in writing; but delivery shall not be necessary if, in other respects, the contract shall be consummated." A memorandum sufficient to satisfy the statute of frauds is not always sufficient compliance with Code, § 56-801, requiring that the entire contract for fire insurance be in writing. Coffin v. London Edinburgh Ins. Co. (D.C. Ga.), 27 Fed. 2d, 616. A plaintiff, "when it shall become necessary for the purpose of enforcing the rights of such plaintiff, . . may amend by substituting the name of another person in his stead, suing for his use." Code, § 81-1307. "Although a plaintiff having a right of action against another may sue for the use of any person whom he may designate to take the proceeds of the action, a plaintiff having no right of action at all can not recover either for his own benefit or for the use of any one else." Terrell v. Stevenson, 97 Ga. 570 ( 25 S.E. 352); Wright v. Continental Insurance Co., 117 Ga. 499, 501 ( 43 S.E. 700). If the petition in the instant case is construed on the theory that the suit is brought in the name of A for the use of B, C, and C's children (the plaintiffs), and the facts show that A has settled his claim against the insurance company and has surrendered the policy, then A has no cause of action against the defendant, and in such a case A can not any more sue for the use of B, C, and C's children than for his own use. Nor can the plaintiffs bring the suit in the name of A as the nominal party for their own use, for a cause of action must be shown to exist in favor of the nominal party. Jones v. Reed, 58 Ga. App. 72 (2) ( 197 S.E. 665). See in this connection Wheeler v. Stapleton, 99 Ga. 731, 732 ( 27 S.E. 724). The petition under such a theory is not maintainable against the demurrer.
If the suit be construed as being brought in the name of the plaintiffs alone, which would prevent the application of the above stated rule, we have a suit brought on a written contract of fire insurance in which there is no reference to the plaintiffs. The plaintiffs are strangers to the contract as written. Then, how do the facts alleged seek to connect the plaintiffs with the contract? The plaintiffs say by estoppel, in that the company received premiums from A, the only person named in the policy as the insured, when the company knew the property described in the policy belonged to A and the plaintiffs jointly. Estoppel is not a substitute for reformation. Jacobs v. Merchants Fire Assur. Cor. of N. Y., (C. C. Ga.), 99 Fed. 2d, 655, 657. Estoppel is negative (thou shalt not). It is not creative (thou shalt). Life Casualty Insurance Co. of Tenn. v. Carter, 55 Ga. App. 622, 626 ( 191 S.E. 153). In the cases cited by the plaintiffs, the insurance companies were estopped from defeating or changing the policies as written. This is a different thing from the creating or reforming by estoppel of a contract required to be in writing and the estoppel by which it is proposed to reform the contract is sought to be proved by parol evidence. Here, the plaintiffs are in effect saying: "Thou shalt create for us a written policy by inserting therein our names as the owners of the insured property along with the name of A, the only person named therein as owner of the insured property." The policy as written can not be transformed by estoppel.
The written contract on which the suit is brought makes no reference to the plaintiffs, or to any other contract which would indicate any connection between the plaintiffs and the company, or between the plaintiffs and A, the only person named in the policy as the insured. When A settled his interest in the policy and surrendered it, he was out of the picture. If the plaintiffs were desirous of asserting a cause of action against the company through their connection with A as a connecting link, this could not be done for when A settled all his interest in the policy it broke the link and severed the connection, if any, between the company and the plaintiffs. There is no privity of contract between the plaintiffs and the defendant, and hence no proper party plaintiff in the case, and if the plaintiffs had no cause of action against the defendant under the policy the receipt signed by A could give them no right of action against the company which they did not have before. If on account of fraud, accident, or mistake the writing fails to express the true agreement, and a reformation could be had in a court of equity, such affirmative relief can not be granted by city courts in Georgia, which are courts of law.
The plaintiffs rather indicated in their brief the contention that they might recover on their petition as for money had and received. The right to maintain an action for money had and received "can be maintained only to recover either money or the equivalent of money. In order to maintain an action for money had and received it is necessary to establish that defendants have received money belonging to the plaintiff or to which he is in equity and good conscience entitled. It is not sufficient to show that they have by fraud or wrong caused the plaintiff to pay money to others or to sustain loss or damage." 2 Elliott on Contracts, 623, § 1375. But even if it be said that the company received the premiums from A when they knew the property belonged to A and the plaintiffs jointly, this suit is for damages for the loss of a house occasioned by fire, and can not in any sense be construed as a suit for the recovery of money "had and received" or the equivalent thereof.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.