131 Mass. 39 | Mass. | 1881
When a policy of insurance against fire provides that a loss under it shall not be payable till the assured produces the certificate of a magistrate to certain required facts, the production of such certificate is a condition precedent to the right to sue, unless the insurer has prevented or waived such production. Johnson v. Phoenix Ins. Co. 112 Mass. 49. The policy in suit contains this provision, and a certificate of the required form and substance was furnished; but the defendant now contends that it did not satisfy the requirement of the policy that it be made by a magistrate not concerned in the loss as a creditor or otherwise, because the magistrate was a creditor of the assured when the loss occurred and when the certificate was made.
It is not contended that either the assured or the magistrate supposed that the certificate was defective, nor that either of them acted in bad faith in the matter. We are of opinion that the certificate meets the requirement of the policy. The phrase “ not concerned in the loss as a creditor ” cannot be supposed to disqualify every magistrate who may chance to be a creditor,
The statement in the policy, that the buildings were used for the storage of ice, was not a warranty that ice was there stored when the policy was written- The policy was written in mid summer, at a time when it would naturally be expected that a large part at least of the ice crop of the previous year had been exhausted. The fact that ice is produced by natural causes only in the winter season, so that the houses used for storing it will ordinarily be empty for a part of the year, indicates that the words in the policy were not intended and were not understood as warranting that ice was actually stored in the buildings at the moment of issuing the policy, but as descriptive of the business ordinarily done in them. In this sense they were operative as a part of the policy, because they prevented any liability of the defendant for loss, in case the buildings should be used during the term of the policy'for a business more hazardous than that of storing ice. The case is unlike that of Goddard v. Monitor Ins. Co. 108 Mass. 56, in which it was held that a policy insuring a building as a machine-shop, as represented by one applying for the insurance, when in fact the building was occupied as an organ factory, on which the risk was greater, was void, because the minds of the parties never met. There existed in that case a state of facts entirely inconsistent with that which was represented to exist, and which, if known, would have made it manifest that the building was not a machine-shop in any sense, and was a shop used for a different and more dangerous purpose. In the cases relied on by the defendant, the point was that the state of things represented as existing, or warranted to exist, did not exist. In the case at bar, the question arises on the proper interpretation of the language
The representation by the clerk of the insurance broker to the agent of the defendant, that the buildings were full of ice, though false, did not vitiate the policy. The broker’s clerk was not in any sense the agent of the assured, and was not the person who procured the policy. The application for the policy having been made in writing to the defendant, it had no right to rely on any verbal representations or statements made by a messenger sent by the broker to its agent, nor to assume that such statements or representations were made with the knowledge or consent of the assured. In the cases relied on by the defendant, on this branch of the case, the false representations were in writing, and referred to in the policy as representations on which the policy was based, and on the truth of which its validity depended. The assured, by accepting the policies containing those provisions, adopted the representations made, whatever they might be, and assumed the risk of their being false. Kibbe v. Hamilton Ins. Co. 11 Gray, 163. Draper v. Charter Oak Ins. Co. 2 Allen, 569. In the case at bar, the assured assumed nothing which the policy did not show, beyond what was done by his authority or by his agent.
The result is that there must be
Judament on the verdict.
