315; Spare v. Home Mutual Ins. Co., 17 Fed. 569; Longhurst v. Star Ins, Co. 19 Iowa, 364.
Corliss, C. J. The alleged liability of the defendant, the California Insurance Company of San Francisco, rests upon a fire insurance policy issued by it covering buildings owned by one E. C. Sprague; and the other defendant, the Phenix Insurance Company, is sought to be held by virtue of a contract between it and its co-defendant whereby it reinsured the risk, and assumed the same. If this contract were strictly one of reinsurance, there would be no such privity between the original insured and the reinsurer as would create a liability on the part of the latter to the former. Strong v. Insurance Co., 62 Mo. 289; Insurance Co. v. Cashow, 41 Md. 59; Herckenrath v. Insurance Co., 3 Barb. Ch. 63; Com. Mut. Ins. Co. v. Detroit F. & M. Ins. Co., 38 Ohio St. 11-16; Gantt v. Insurance Co. 68 Mo. 533. This doctrine has been embodied in our Code. § 4186 Comp. Laws. But this contract appears to have been more than one of reinsurance. The Phenix Company assumed the risk, and there is respectable authority holding that under such an agreement the original insured may sue directly the company that assumes the loss. Johannes v. Insurance Co., (Wis.) 27 N. W. Rep. 414; Glen v. Insurance Co., 56 N. Y. 379; Fischer v. Insurance Co., 69 N. ¥. 161. No question having been made in the court as to the liability of the Phenix Company directly to the insured we will not discuss the point any further.
The plaintiff sues as the mortgagee of the insured, whose debt exceeds the amount due under the policy. The policy makes the loss payable to the mortgagee as its interest may appear. It is not claimed that the mortgagee cannot maintain this action without joining with it the insured as a party plaintiff. That the mortgagee may sue alone, where his claim exceeds the amount of the insurance, has the support of several cases. Hammel v. Insurance Co., 50 Wis. 240, 6 N. W. Rep. 805; Core v. Indurance Co., 60 N. Y. 619; Martin v. Insurance Co., 38 N. J. Law, 140; Coates v. Insurance Co., 58 Md. 172. If the owner lays claim to any part of the insurance money, the company may protect itself by interpleader. But the better
