#### Hayes Pump & Planter Company, Appellee, v. The Assurance Company of America, Appellant.

Gen. No. 17,917.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walkeb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Affirmed on remittitur; otherwise reversed and remanded.

Opinion filed October 14, 1913.

Rehearing denied October 28, 1913.

Statement of the Case.

Action by Hayes Pump and Planter Company, a corporation, against The Assurance Company of America for $4,251.76, with interest, on account of a loss by fire in Kansas City, Mo., October 12,1909. The basis of the claim, as appears from the statement of claim, is that there was an adjustment between the parties at this amount, and suit was brought not upon the policy itself but upon the implied promise to pay, created, if at all, by the alleged' settlement.

The affidavit of defense denies in form the promise to pay, and sets out that the liability of the defendant, if any, is for the sum of $2,763.65. From a judgment for plaintiff for $4,251.76 and interest, defendant appeals.

*381Abstract of the Decision.

Insurance, § 485 * —what is effect of adjustment. Where an ad-. justment of fire losses was completed and agreed to and the total amount of the loss was properly ascertained, hut the amount chargeable to one company was erroneous because of a coinsurance clause in its policy, held, the adjustment gave rise to an implied promise to pay the sum justly apportionable to such company according to its policy, and the company was not required to pay a larger sum because of a misconception of its adjuster and the insured.

Barger & Hicks, for appellant.

Lasley & Lasley, for appellee.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Justice Clark

delivered the opinion of the court.