
    The American Spelter Company To Use Of The Union Trust Company, Respondent, v. The Manchester Fire Assurance Company, Appellant.
    St. Louis Court of Appeals,
    October 26, 1897.
    Pleading: defect of parties: waiver. A defeat of parties, apparent upon the face of a petition-, must be taken advantage of by demurrer; otherwise the defect will be waived.
    
      
      Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.
    Affirmed (with directions).
    
    
      Fyke, Yates & Fyke for appellant.
    Under the terms of the policy, the loss is payable, absolutely, • to the Union Trust Company, which is the real party in interest, and the only party entitled to maintain an action on the policy.- Griswold v. Ins. Go., 1 Mo. App. 97-100; Berthold v. Ins. Co., 2 Id. 311-316; Burris v. Ins. Co., 65Id. 157; Bartlett v. Ins. Co., 41 N. W. Rep. 579.
    The insured and mortgagor can not adjust the loss or agree upon the amount of it, so as to bind the mortgagee, without the consent of the latter. Brown v. Ins. Co., 5 R. I. 394; Bergman v. Ins. Co., 15 L. R. A. 270; 18 S. W, Rep. 122.
    
      Clapton & Trembley for respondent.
    Defect of parties, where the defect is in the petition, must be taken advantage of by demurrer, or by answer, where the defect does not appear. R. S. Mo. 1889, secs. 2043, 2047; Lucky v. Treadway, 45 Mo. App. 164; Pike v. Martindale, 91 Mo. 268; Michael v. Ins. Co., 17 Mo. App. 23; Hager v. Graves, 25 Id. 164.
    The rule extends to the objection that there has been a misjoinder of parties. Anderson v. McPike, 41 Mo. App. 328; Taber v. Wilson, 34 Id. 89.
    Answering to the merits waives defect of parties. Planing Mill v. Church, 54 Mo. 520.
    Defect of parties can not be raised by demurrer to the evidence. Pettingillv. Jones, 21 Mo. App. 210; Hor
      
      sttcotte v. Menier, 50 Mo. 158; Dimn v. B. B., 68 Id. 268; Benseich v. Goolt, 110 Id. 182; Gooh v. Tull, 113 Id. 288; Dodson v. Lomax, Id. 559;- Gimble v. Pignero, 62 Mo. 243.; Butter v. Lawson, 72 Id. 246.
    The court was justified in sustaining the motion to set aside the nonsuit that the plaintiff might amend by striking out the words “The American Spelter Company to the use of. ” They may be stricken out under the authority of Beattie v. Lett, of the words “To the use of the Union Trust Company,” might be stricken out as surplusage. Banlc to use v. Gilpen, 105 Mo. 21, 22. •
   Bland, P. J.

This suit was brought on a fire insurance policy issued by the appellant to the American Spelter Company, “loss, if any, payable to the Union Trust Company of St. Louis,” was written in the face of the policy, and this fact was averred in the petition. The answer admitted the execution'of the policy, but set up by way of defense a number of breaches of the conditions of the policy by the American Spelter Company. It also contained a general denial. A reply to the answer was filed. On the trial the appellant objected to the introduction of any evidence, upon the ground that the Union Trust Company was the only party that could maintain the action. This objection was sustained by the trial court, whereupon the respondent took a nonsuit, with leave to move to set the same aside. A motion to set aside the nonsuit and grant a new trial was timely filed, and by the court sustained, and a new trial granted. From this order of the court granting a new trial, the Manchester Fire Assurance Company duly appealed to this court.

The writing in the face of the policy, “loss, if any, payable to the Union Trust Company of St. Louis,” was an assignment of all .beneficial inter ,. est in the policy to the latter company, Bergman v. Ins. Co. 15 L. R. A. 270,— and it was the only necessary party to the suit. R. S. 1889, sec. 1990. The fact that the American Spelter Company was an unnecessary party plaintiff, was apparent upon the face of the petition, and should have been taken advantage of by demurrer. R. S. 1889, sec. 2043; Hager v. Graves, 25 Mo. App. 164; Lucky v. Treadway, 45 Mo. App. loc. cit. 515, 516; Pike v. Martindale, 91 Mo. 268. The defect being apparent upon the face of ^he petition, the appellant, by failing to take advantage of it by demurrer, waived it. R. S. 1889, sec. 2047; Pike v. Martindale, supra, Mechanics Bank v. Gilpen, 104 Mo. 17.

The order of the trial court setting aside the non-suit and granting a new trial is affirmed, with directions that respondent be permitted to amend the petition by striking out the name of the American Spelter

Company as a party plaintiff, if it is so advised.

All concur.  