| Mass. | Mar 3, 1917
This is an action by the trustee in bankruptcy of one Staples to recover on a policy issued by the defendant company insuring Staples on certain personal property contained in a building specified in the policy. The policy was in the Massachusetts standard form. There was a fire in the building on December 16, 1914. A few days later the bankrupt had a conversation with the adjuster who “adjusted his son’s [son-in-law’s] property there which was insured by this same insurance company.” The bankrupt testified that the adjuster turned to him and said that he thought the damage to the bankrupt’s property was about $250, and that he then said to him “Who owns this property? ” and the bankrupt told him that his son-in-law owned it. Thereupon (according to the bankrupt’s testimony) the adjuster said he “would look it up,” that “he would have to look it up and that he didn’t think he could pay it.” To which the bankrupt said it was “immaterial” to him. Thereupon “the adjuster went away and he never saw him again.” The bankrupt further testified that he had no correspondence with him or the insurance company and made no written statement to the insurance company. At the trial of the case at bar the bankrupt testified that he owned the property at the time of the fire; that what he told the adjuster was a lie; that six or seven attachments had been put on his property within a few days after the fire and that he had told the lie to the adjuster hoping in this way to prevent his attaching creditors getting the proceeds of the insurance, and to insure their going to his son-in-law.
Staples filed a voluntary petition in bankruptcy on January 19,
To make out a right to recover under the policy the trustee had to show that the amount of the loss had been determined by agreement between the bankrupt and the company. There was no pretence that referees had been appointed to determine the amount of the loss or that a request had been made to have them appointed and there was no suggestion that the trustee of the bankrupt had made an agreement as to the amount of the loss or had made a request for the appointment of referees.
It is plain that on the evidence the jury could not have found that an agreement as to the amount of the loss was made between the insurance company and the bankrupt. If it could be found that the insurance company was ready to agree that the amount of the loss was $250, there was no evidence warranting a finding that the bankrupt entered into an agreement to that effect. So far from a finding to that effect being warranted on the evidence it was plain that when the adjuster said that he thought the amount qf damage was $250 the bankrupt did not accept that offer, even if indeed it could be found to have been an offer. On the contrary he said the matter was “immaterial” to him and that ended the conversation. On the evidence that was the end of any attempt to come to any agreem'ent as to the amount of the loss between the bankrupt and the company.
It follows that the judge was wrong in refusing to direct the jury to return a verdict for the defendant and the exception to his refusal to do so must be sustained.
We are further of opinion that this is a case where acting under St. 1909, c. 236, § 1, judgment should be entered for the defendant, and it is
So ordered.