269 Mass. 225 | Mass. | 1929
This is an action of contract to recover $1,368, alleged to be due under two policies of fire insurance issued by the defendant.
On May 1, 1925, the defendant issued to the plaintiffs a policy of fire insurance in the Massachusetts standard form in the amount of $4,300, of which $4,000 purported to cover a frame building, and $300 a frame stable. The policy was for a term of five years from May 22, 1925, and the premium was paid. In, or about, January, 1926, the defendant issued to the plaintiffs another policy of insurance in the same form as the first, in the amount of $2,000, which purported to cover the frame dwelling described in the first policy. It was for a term of five years from January 8, 1926, and the premium was paid. Both policies were payable in case of loss to “Joseph Warren Co-operative Bank of Roxbury, Mortgagee, as interest may appear . . . .”
On October 14, 1926, the dwelling described in the policies was damaged by fire. On November 2, the plaintiffs made claim for a loss of $4,911 and filed two sworn statements as required by the terms of the policies. The defendant did not agree that the loss amounted to the sum claimed, but on December 3, delivered to the plaintiff John Celi two drafts aggregating $4,632, which provided that they were “in full payment and satisfaction for loss and damage by fire or
Under the terms of the Massachusetts standard form of policy, when a fire occurs the amount of the loss must be determined either by agreement of parties or by the award of referees or by the courts when the award by referees is waived. Second Society of Universalists in Boston v. Royal Ins. Co. Ltd. 221 Mass. 518, 525. The insured may also agree to a compromise with the insurer as to the amount of the loss upon terms mutually satisfactory. The record shows that the parties failed to agree as to the amount of the loss or damage resulting from the fire which occurred October 14, 1926. It does not appear that the amount was determined by referees or that a submission to them was requested. It does appear, however, that the plaintiffs claimed a loss of $4,911; that the defendant sent the plaintiffs drafts amounting to $4,632, and the policies were can-celled and surrendered. The acceptance by the plaintiffs of the drafts paid to them by the defendant and the delivery of the policies amounted to a compromise and settlement of any and all liability on the part of the defendant under the policies. Prout v. Pittsfield Fire District, 154 Mass. 450. Kennedy v. Welch, 196 Mass. 592, 596. Mackin v. Dwyer, 205 Mass. 472, 475. Whittaker Chain Tread Co. v. Standard Auto Supply Co. 216 Mass. 204, 206. Tuttle v. Metz Co. 229 Mass. 272. Codman v. Dumaine, 249 Mass. 451, 458.
It is not suggested that the plaintiffs were induced to enter
As the finding for the defendant by the trial judge was warranted, it follows that the entry must be
Exceptions overruled.