Page:North Dakota Reports (vol. 1).pdf/176

 '''2. Mortgagee to Whom Loss Payable May Sue Alone on Policy.'''

A mortgagee, to whom policy to mortgagor is made payable, may sue alone where his claim exceeds the amount of the insurance.

3. Reinsurance; When Insured May Sue Reinsurer.

A mere contract of reinsurance creates no privity between the original insured and the reinsurer; but where the loss or risk is expressly assumed by another company, the original insured may sue upon such contract as having been made for his benefit.

PPEAL from district court, Cass county; Hon., Judge.

Action by mortgagee on a policy of insurance issued to mortgagor, loss, if any, payable to mortgagee, by defendant California Insurance company. Complaint alleged that the risk of the California Company was reinsured and assumed by defendant Phenix Company. Defendants demurred (but not separately) on ground that complaint stated no cause of action. Demurrer overruled; the ruling was excepted to and the defendants answered admitting that the Phenix Company reinsured and assumed the risk. Verdict and judgment for plaintiff.

W. L. Wilder and Messrs. Miller, Cleland & Cleland for appellants, argudd: That the complaint failed to show any liability on the part of the Phenix Company. Johannes v. Phenix Co., 15 Ins. Law Jour. 449; Doyle v. Phenix Co., 44 Cal. 264; Johnson v. Home Ins. Co., 6 Pac. Rep. 727, and other cases. That action was barred by the limitation contained in the policy. Riddlesberger v. Hartford Ins. Co., 7 Wallace, 386; Arthur v. Homestead Ins. Co., 78 N. Y. 462; Laughlin v. Union Central Life Ins. Co., 11 Fed. Rep. 280; Garretson v. Hawkeye Ins. Co., 65 Iowa, 468; Ripley v. Ætna Ins. Co., 30 N. Y. 164

Alf E. Boyesen, for the respondent, argued: That time for beginning action does not begin to run until sixty days after proofs of loss are furnished; citing, Ellis v. Council Bluffs Ins. Co., 20 N. W. 782; Frienzen v. Allemania Ins. Co., 30 Fed. Rep. 353; Mix v. Andes Ins. Co., 9 Hun, 397; Major v. Hamilton Ins. Co., 16 W. Va. 658; Steen v. Niagara Ins. Co., 89 N. Y.