64 Mass. 587 | Mass. | 1852
It being admitted in the present case that the assured, in his application for insurance in answer to questions propounded by the defendants, represented the property on which the insurance was effected, to be free of all incumbrances, when in fact the real estate and a portion of the personal property covered by the policy were subject to distinct mortgages, the plaintiff cannot recover, unless the case at bar can be distinguished in principle from recent well considered decisions of this court. Vose v. Eagle L. & H. Ins. Co. 6 Cush. 42; Davenport v. N. Eng. Mut. F. Ins. Co. 6 Cush. 340; Hayward v. Same, ante, 444. The plaintiff seeks to establish a distinction between the present case and those cited, on the ground that by an express stipulation in the application the responsibility of the assured for the materiality of representations made by him is limited and confined to those which relate to the risk on the property, that is, to its exposure to fire, and that he is not answerable for any other statements made by him concerning the title to the property, the incumbrances thereon, and other matters which do not affect the risk assumed by the defendants. The clause in the application upon which this argument is founded, is as follows: “And the said applicant covenants and agrees with said company that the foregoing is a correct description of the property requested to be insured so far as regards the risk on the same.” The plaintiff contends that this express agreement suspends, as between these parties, the general rule applicable to material representations contained in a policy, on the principle that it is competent for parties to a contract to limit and regulate their legal liabilities by distinct stipulations, and that
The plaintiff further contends that if he is not entitled to recover the whole sum for which the property was insured on account of the misrepresentation respecting incumbrances on a portion of the property, he has nevertheless a valid claim for the amount insured on the stock in trade, because the four subjects embraced in the policy, being valued separately, and a distinct sum insured on each, and there having been no incumbrance on the stock, there was no misrepresentation respecting this part of the property, which can affect his claim for loss thereon. But it appears to us that this argument proceeds upon a mistaken view of the nature of the contract, and the respective rights and liabilities of the parties. The contract of insurance on the part of the defendants was not distinct and separate on each class or subject embraced in the policy. It was separate and distinct only so far as to limit the extent of the risk assumed by the defendants on each kind of property. In all other respects it was an entire contract. This is manifest from the fact that the premium and deposit are designated as entire sums without any reference to the different kinds of property covered by the policy on the separate sums insured on each. There is nothing in the application or policy from which it can be ascertained how much of the deposit note was made up of the rate of insurance charged on the real estate, and how much of that on the personal
The only remaining question arises on the claim of the plaintiff to recover the amount paid as a cash premium on the policy in question. This is urged on the ground that the policy never attached for the reasons already given, and the consideration for the contract having wholly failed, the plaintiff is entitled to its return. It is very questionable whether, in policies issued by mutual insurance companies, any return