154 Mass. 570 | Mass. | 1891
We think the decree in this case should be affirmed. It is evident from the agreement that the parties contracted with reference to the possibility that the buildings might be destroyed by fire. They expressly agreed as follows: “ Party of first part [the defendant] to keep said premises insured for the benefit of party of second part, as his interest may appear; and if party of second part leaves the house vacant at any time, he is to pay for all extra insurance.” The report states that, at the time the agreement was entered into, it was understood by the parties that the insurance of eight hundred dollars, which the defendant had procured in his own name, sufficiently fulfilled his agreement to keep the buildings insured for the benefit of Stimpson, the other party to the contract. The parties having in their contract, and by their acts, provided relative to the destruction of the buildings by fire, the happening of that event can furnish no excuse to either party for refusing to carry out the agreement. In such a state of things, no condition can be implied that the performance of the contract is dependent upon the continued existence of the buildings. The reasoning of the cases in which it has been held that both parties were excused from performance by the destruction before a breach of that which constituted an important part of the contract, but con
It follows that the defendant was not relieved from the performance of his contract by the fact that the buildings had been destroyed. That being so, it was for the plaintiff to. elect whether she would pursue her remedy at law for damages for the breach of contract, or whether she would bring a bill in equity to compel performance of the contract. Cunningham v. Hall, 4 Allen, 268. Woodbury v. Luddy, 14 Allen, 1. Davis v. Parker, 14 Allen, 94. She has elected the latter, and the question is to what is she entitled from the defendant. She is entitled in the first place to a warranty deed of the land in the usual form, free from all incumbrances, upon payment of all sums due to the defendant; that is what the agreement calls for. She sets up in her bill that she has offered to pay what is due, or, what is the same thing, has offered to allow the defendant to retain it from the proceeds of the insurance, and we do not understand that the defendant objects to the sufficiency of her offer, or of that which Stimpson had previously made.
In the next place, upon the execution of the agreement, Stimpson, her assignor, acquired an insurable interest in the property to the extent of its full value. Strong v. Manufacturers’ Ins. Co. 10 Pick. 40. Gilman v. Dwelling-House Ins. Co. 81 Maine, 488. McGivney v. Phoenix Ins. Co. 1 Wend. 85. Ætna Ins. Co. v. Tyler, 16 Wend. 385. Columbian Ins. Co. v. Lawrence, 2 Pet. 25. The contract provided that the defendant should keep the premises insured for Stimpson’s benefit as his interest might appear, and at the time the agreement was entered into it was understood by Stimpson and the defendant that an insurance of eight hundred dollars, which the defendant had in his own name, sufficiently complied with the provision as to insurance in favor of Stimpson. The defendant thenceforth held the policy for the benefit of Stimpson and his heirs or assigns, and had no right without their consent to make the settlement which he did; and he cannot now relieve himself by virtue of that settlement from liability to the plaintiff under his agreement to keep the premises insured, but is liable for the full value of the property destroyed up to eight hundred dollars, which the parties in substance agreed should be the limit of the insurance. Peabody v. Tarbell, 2 Cush. 226.