219 Mass. 132 | Mass. | 1914
We assume in favor of the plaintiff that on the evidence a finding was warranted that the defendant had waived its right to insist upon any further notice or proof of loss under the policy than that which it had received through its agents, and also had waived or had become estopped from exercising its right to require a reference to arbitration of the amount of the loss. Little v. Phœnix Ins. Co. 123 Mass. 380. Eliot Five Cents Savings Bank v. Commercial Union Assurance Co. 142 Mass. 142. But this policy contained the stipulation required by our statute then in force (R. L. c. 118, § 60; see now St. 1907, c. 576, § 60),
This policy was held by one Hawkes, who had become the owner of the insured property. He mortgaged it to the plaintiff, and made the policy payable to it in case of loss. He then sold and conveyed the property to one Collins, who sold and conveyed it to one Seib, but the policy was not assigned either to Collins or to Seib, and neither sale was assented to by the defendant. On April 7, 1909, the house insured was damaged by fire. On June 17, 1909, the plaintiff foreclosed its mortgage by a sale of the premises and, as permitted by the terms of the mortgage, bought the property at this sale, recorded a proper deed and affidavit on July 13, 1909, and became and has since remained the owner of the property.
This action was brought in February, 1911.
At the trial the defendant asked, among other things, for rulings that upon all the evidence the plaintiff could not recover, and that the plaintiff could not recover because it had put it out of its power to comply with the provisions of the policy which gave the defendant the right to an assignment from the plaintiff of the mortgage and the debt thereby secured, and because there was no evidence that the defendant had waived its right to such an assignment.
In our opinion these rulings should have been given and a verdict ordered for the defendant.
The policy by reason of the conveyances to Collins and to Seib had become invalid as to the mortgagor and the owners of the property, but still was binding in favor of the plaintiff as mortgagee. Eliot Five Cents Savings Bank v. Commercial Union Assur
The defendant’s right to require an assignment depending upon its election, would accrue only upon its payment or tender and demand of an assignment. And it must make its election within a reasonable time, or its right would be gone. Eliot Five Cents Savings Bank v. Commercial Union Assurance Co. 142 Mass. 142. Union Institution for Savings v. Phœnix Ins. Co. 196 Mass. 230. But the defendant never made an election, never offered to pay to the plaintiff the amount due upon its mortgage note. Amory v. Reliance Ins. Co. 208 Mass. 378. Yet the plaintiff’s difficulty is that there was absolutely no evidence of any notice to the defendant of the circumstances by reason of which its liability to Hawkes had been extinguished, though continuing as to the plaintiff. There was, so far as the defendant could know, no right on its part, instead of paying the amount of the loss under the policy, to pay off the plaintiff’s mortgage debt and take an assignment of the note and mortgage. The reasonable time within which the defendant must act could begin to run only when it had knowledge of the altered state of affairs which had discharged it from liability to Hawkes, or at most only when it was in some degree at fault for not having such knowledge. The fire occurred on April 7. The plaintiff made its foreclosure sale on June 17, and must have begun the foreclosure proceedings at least three weeks
For like reasons it had not waived its right. It knew neither of the right nor of the facts which created the right. But such knowledge is essential to a waiver. Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co. 199 Mass. 22, 39, 40, and cases there cited. There is no element of estoppel here against the defendant. Prest v. Cole, 183 Mass. 283, 286.
The rulings which we have stated ought to have been given; and the case ought not to have been submitted to the jury. Under the stipulation of the parties stated in the report, we have no alternative but to direct that judgment be entered for the defendant.
So ordered.