
    [No. 14938.
    Department Two.
    January 10, 1919.]
    Gene C. Gould, Respondent, v. St. Paul Fire & Marine Insurance Company, Appellant.
      
    
    Insurance (91) —Policy—-Breach — Provision Against Mortgage—Payment Before Loss. Under Rem. Code, § 6059-34, the placing of a chattel mortgage upon property in violation of the terms of a policy of fire insurance does not avoid the policy, where the mortgage was paid and the breach of the policy did not exist at the time of the loss.
    - Appeal from a judgment of the superior court for King county, Hall, J., entered January 9, 1918, upon findings in favor of the plaintiff, in an action on a fire insurance policy, tried to the court.
    Affirmed.
    
      H. T. Granger, for appellant.
    
      Smith, Chester, Brown & Worthington, for respondent.
    
      
      Reported in 177 Pac. 787.
    
   Main, C. J.

The purpose of this action was to recover upon a fire insurance policy the value of an automobile destroyed by fire. In the complaint, Manuel Benson and the St. Paul Fire & Marine Insurance Company were made parties defendants. One Alfred Anderson filed a complaint in intervention. After the issues were framed, the action was tried to the court without a jury, and resulted in a judgment adverse to the defendant St. Paul Fire & Marine Insurance Company. From this judgment, the appeal is prosecuted.

To avoid confusion the parties will be designated as they appear in the proceeding in the superior court. The plaintiff, Gould, on the third day of May, 1916, being the owner of a certain automobile, sold the same to the defendant Benson upon a conditional sale contract. At the time of the sale, a substantial payment was made, leaving a balance of $1,100 dne under tbe terms of the contract. On tbe day tbe car was purchased, tbe defendant tbe St. Paul Fire & Marine Insurance Company, at tbe request of Benson (tbe purchaser), covered tbe car with a fire insurance policy in tbe sum of $1,100. This policy carried a loss payable clause which provided that any loss should be paid to tbe plaintiff Gould (tbe seller of tbe car) as bis interests might appear, subject to tbe conditions of tbe policy. Subsequent to this, Benson operated tbe car and, from time to time, made payments as called for in tbe conditional sale contract. On or about tbe 30th day of December, 1916, while tbe insurance policy was still in force, tbe automobile was destroyed by fire. Gould brought an action on tbe policy to recover a sum equal to tbe balance then due him upon tbe conditional sale contract.

After tbe fire, and prior to tbe institution of the action, an assignment was made by Benson to Anderson of all bis rights under tbe insurance policy. After tbe action bad been instituted by Gould, Anderson intervened, claiming tbe right to recover on tbe policy tbe balance after Gould’s claim should be satisfied. Tbe complaint of Gould and the intervening complaint of Anderson were answered separately by tbe insurance company. In each answer there was an affirmative defense to tbe effect that, prior to tbe time tbe automobile was destroyed by fire, Benson bad placed a chattel mortgage upon it and that such mortgage was in full force and effect when tbe fire occurred. Tbe policy of insurance contained a clause that it should be void in tbe event that tbe property covered thereby should be incumbered by a chattel mortgage. Tbe trial court made findings of fact and conclusions of law, and entered a judgment sustaining tbe right to recover upon the complaint, and also the intervening complaint. The fire insurance company made a specific request that the court find that, after the issuance and delivery of the insurance policy, Benson executed and delivered a chattel mortgage upon the insured automobile for the sum of $200, and that such mortgage was in full force and effect and unpaid at the time the fire occurred. The court specifically refused to make this finding. The question then is whether the evidence supports the finding refused.

Without reviewing the testimony in detail, it may be said' that the evidence upon the question as to whether a mortgage had in fact been given is far from satisfactory and lacks convincing force. But conceding, without deciding, that there was sufficient evidence to sustain such a finding, the same testimony which would sustain a finding that a chattel mortgage had been placed upon the automobile would show that, if there had been such a mortgage, it had been paid prior to the fire. If a mortgage had been placed upon the automobile in violation of the conditions of the policy and had been paid prior to the time the fire occurred, it would not defeat the recovery. In that event the breach of the policy would not exist at the time of the loss. Rem. Code, § 6059-34; Silver v. London Assurance Corp., 61 Wash. 593, 112 Pac. 666; Port Blakeley Mill Co. v. Springfield & Marine Ins. Co., 59 Wash. 501, 110 Pac. 36, 140 Am. St. 863, 28 L. R. A. (N. S.) 596.

As we view the case, it is unnecessary to discuss or decide questions other than those already referred to.

The judgment will be affirmed.

Fullerton, Holcomb, Mount, and Parker, JJ., concur.  