184 Mass. 12 | Mass. | 1903
These actions are in contract upon policies of fire insurance issued to one Callender upon his mill. They were tried together and with a verdict for the plaintiff in each case. On March 2, 1900, Callender filed a voluntary petition in bankruptcy and was adjudicated a bankrupt. On March 10, 1900, at 12.30 o’clock P. M. a receiver of the bankrupt’s estate was appointed and at 7.45 p. M. on the same day the insured property was destroyed by fire. On April 23,1900, the plaintiff was appointed trustee in bankruptcy, and thereafter brought the actions.
One exception was to the introduction of evidence. Although this exception is stated in the defendants’ brief it has not been argued by them and we treat it as waived.
Sixteen requests for rulings to the jury were made by the defendants, and the other exceptions relate to the requests.
The policies were of the Massachusetts standard form, and upon each was a rider containing the following clause: “ It is understood and agreed that the Automatic Sprinkler System is in complete working order and in further consideration of reduction in rate it is hereby made a condition of this policy that the assured shall use due diligence that such equipment shall continue to be maintained in complete working order during the full term of this insurance.”
The defendants contended that they were not liable because the terms of this clause had not been complied with; that the burden of showing compliance with both parts of the clause was upon the plaintiff. They also relied upon alleged breaches of the usual conditions against failure fairly to represent the material facts and circumstances, against change of situation or circumstances affecting the risk, and against a sale of the property or an assignment of the policy, and the requests for instructions were addressed to the questions arising under these various defences.
The arguments of the defendants’ brief are embraced in two classes, first those founded upon the effect of the bankruptcy proceedings upon the contracts evidenced by the policies, and second those founded upon the rider concerning the sprinkler system.
One contention is that neither the policies nor any right of
The next contention is that upon the adjudication that Callender was a bankrupt he ceased to have an insurable interest in the property. But neither the policies nor the insured property vested in the trustee at the time of the adjudication. The insured property never vested in the trustee because it was not in existence at the time of his appointment and qualification. The title to it remained in Callender until it was destroyed by fire, as also did the title to the policies. Hence the destruction of the property changed or ripened the conditional obligation of the insurers into a fixed obligation to pay the amount of indemnity stipulated for in the policy. To hold that this ripening of the obligation made it after acquired property which would not vest in the trustee, but which the bankrupt could hold as his own, would be as absurd as to hold that if goods which he had at the time of adjudication were converted by a stranger to his own use between the time of the adjudication and the appointment of the trustee the right to maintain trover for their value would not pass to the trustee, but might be enforced by the bankrupt as after acquired property.
If an unmatured obligation on which'there was no right of action at the date of adjudication should mature between it and the appointment of the trustee the right of action upon
Nor is there any impossibility of compliance with the provisions for proof of loss, or anything resulting from the bankruptcy of Callender which works a release of the insurers from their obligation because of those provisions. If the insured dies at the same time when the loss occurs no proof of loss can be
As the insured property was destroyed by fire before the bankrupt’s estate became vested in the trustee there was no sale or transfer of it, during the term of the policy and without the assent of the insurers and so no defence under the conditions of the policies relating to such sales, and no alteration of the situation or circumstances affecting the risk growing out of the bankruptcy. These considerations show that there was no error in the refusal to give the second, third, fourth, fifth, sixth and seventh requests.
The exception to the refusal to give the eighth request that the plaintiff was not entitled to recover interest before the date of the writs has not been argued and we treat it as waived.
Of the requests concerning the rider and the sprinkler system the defendants have argued only those relating to the eleventh and twelfth requests. The thirteenth request was given in terms and the fourteenth and sixteenth were covered by the charge in a manner sufficiently favorable to the defendants. As the exceptions relating to the ninth, tenth, fourteenth, fifteenth and sixteenth requests have not been argued by the defendants we consider those exceptions as waived.
The eleventh request was as follows: “ The burden is on the plaintiff to show
a. That the sprinkler system was in complete working order at the time the policy was taken out.
b. That he used due diligence to maintain the sprinkler system in complete working order during the entire time from the date of the policy to the time of the fire.”
The judge gave the instruction that the burden of proof was upon the plaintiff to show that the system was in complete working order at the time the policy was taken out, but refused the second clause of the request and instructed the jury that'the burden was on the defendants to show that the plaintiff failed to use due diligence to maintain the system in complete working order after the policy had taken effect.
“ There is undoubtedly some difficulty in determining by any
In the case last cited it is said that whether a proposition is a warranty “ will depend upon the form of expression used, the apparent purpose of the insertion, and sometimes upon the connection or relation to other parts of the instrument.” As in other cases involving the construction of contracts the language used is to be considered in view of the general purpose of the contract and of the situation of both -parties. As was said in Daniels v. Hudson River Ins. Co., ubi supra, “ the leaning of all courts is, to hold such a stipulation to be a representation, rather than a warranty, in all cases, where there is any room for construction ; because such construction will, in general, best carry into effect the real intent and purpose which the parties have in view, in making their contract.”
In the present instance it is to be noted that the rider, the language of which was chosen by the insurer, does not contain the word “ warrant ” or “ warranty.” The precise word used is “ condition,” and in the body of the policy were other stipulations or conditions, none of which were technical warranties. It is also to be noted that the language of the rider cannot be taken with absolute literalness. It begins by stating that it is “ agreed ” that the system is in complete working order. An agreement assumes that both parties assert to be true the fact stated as agreed. Yet the defendants did not intend to assert or agree on their part that the system was then in order. Again, the full term of the insurance was one year. A loss might happen during the first day of the term, and it would be absurd to contend that if so the insured could not recover for it without showing that he had used due diligence to keep the system in order during the remainder of the year.
While the rider makes due diligence on the part of the insured to maintain the system in complete working order a con
If so, the refusal to give the second clause of the eleventh request, and the instruction given in lieu of it was right.
The next exception is to the refusal to give the instruction that there was no evidence that the sprinkler system was in complete working order when the policy was issued.
The defendants’ brief contends that whether reasonable diligence had been exercised was a question of law and that the judge erred in submitting it to the jury. To what exception stated in the bill this contention is addressed it would perhaps be difficult to say. Assuming that it is open upon the bill, the doctrine of our court is that where the evidence is “ doubtful or
The remaining exception is to the refusal to give the first request, that upon all the evidence the plaintiff cannot recover.
The defendants’ brief contains no argument expressly directed to this exception, and none which we think makes in support of it except those which we have considered and disposed of in dealing with the other exceptions. Certain statements are made in the defendants’ brief as to a payment by the insurers of the mortgage upon the insured property, which do not appear in the Bill of exceptions and concerning which it does not appear that any question was raised at the trial.
Exceptions overruled.
The twelfth request.