55 N.H. 355 | N.H. | 1875
Lead Opinion
A policy is the usual evidence of a contract of insurance. It is not necessary, however, in order to enable the assured to maintain an action upon the contract. If issued, it is the best evidence of what the contract was, and parol evidence would not be admissible to contradict it; but when none is issued, the contract may be proved by any competent evidence. Goodall v. N.E. Ins. Co.,
But the cases are numerous where a party may resort to a court of equity to compel the delivery of the policy, and in a proper case the court having jurisdiction to compel a specific performance, will, to avoid circuity of action, decree payment of the loss as if a policy had been issued. May on Insurance, sec. 565. Tagloe v. Merchants Fire Ins. Co., 9 How. 390, is a case directly in point, where NELSON, J., says, — "No doubt a court could have been framed upon an agreement to insure so as to have maintained the action at law. But the proceedings would have been more complicated and embarrassing than upon a policy. The party, therefore, had a right to resort to a court of equity to compel the delivery of the policy either before or after the happening of the loss; and being properly in that court after the loss happened, it is according to the established course of proceedings, in order to avoid delay and expense to the parties, to proceed and give such final relief as the circumstances of the case demand." See, also, authorities cited in the plaintiffs' brief.
It is not material, therefore, to inquire whether it would or not have been more difficult for the plaintiff to prove the facts essential to enable him to recover in a suit at law, than it would be to maintain this bill. The facts to be proved are essentially the same in either case, and must be shown by the same witnesses or words of proof. But for the reasons above given he will not be driven to commence a suit at law.
Concurrence Opinion
The doctrine seems to be well settled, that a court of equity has jurisdiction to decree specific performance of all agreement to insure, and that, having taken jurisdiction for this purpose, it will go on and afford complete remedy. 3 Pars. on Con. 374, and authorities cited.
LADD, J., concurred.
Demurrer overruled. *359
