200 Mass. 333 | Mass. | 1909
This case comes before us upon appeal from a judgment in favor of the defendant entered upon agreed facts, with no stipulation that the trial or appellate court might draw inferences of fact. The issue thus presented is whether upon these facts the plaintiff, as matter of law, is entitled to judgment. Unless among the facts agreed are found all the elements which the law requires to establish his claim, the plaintiff must fail. Old Colony Railroad v. Wilder, 137 Mass. 536. Mayhew v. Durfee, 138 Mass. 584. Collins v. Waltham, 151
The only contention pressed by the plaintiff is that one Yaffee, of whose estate he is trustee in bankruptcy, made with the defendant, through its authorized agent, a binding paroi contract of insurance. The authority of the agent is not in dispute; nor can it be argued that there may not be a valid contract of insurance resting only in paroi. The only question is whether the agreed facts prove the making of such a contract. These facts are that on December 15, 1906,"Yaffee applied to one Knight, who was agent for several other insurance companies besides the defendant, and requested the issuance to him of policies of insurance on certain identified property to the amount of $3,000. Nothing was said as to the companies by which the policies should be written, as to the amount to be assumed by each company, as to the premium, nor as to the term of the policies. The policies were to be in Massachusetts standard form, and were to be written by Knight, and Yaffee was to receive them at some
Moreover, the facts are susceptible of the construction that the parties never intended any oral contract of insurance, and that they only contemplated a contract springing into existence upon the delivery of the policies and the payment of the premiums. In this aspect of the agreed facts, Wainer v. Milford Ins. Co. 153 Mass. 335, 339, and Meyers v. Liverpool & London & Glole Ins. Co. 121 Mass. 338, are decisive in favor of the defendant. It follows that the plaintiff has failed to sustain his case.
Judgment for the defendant affirmed.
The fire occurred on December 25, 1906.