171 Mass. 568 | Mass. | 1898
The defendants other than the assurance society contend that, as the justice who heard the case decided it in favor of the plaintiff’s third contention, she is not a party aggrieved, within the Pub. Sts. c. 151, § 13, and has no right of appeal. For this position Copp v. Williams, 135 Mass. 401, and Downs v. Bowdoin Square Baptist Society, 149 Mass. 135, are cited. These cases state the familiar rule that, if a party asks for a certain ruling and it is given, he has no ground of exception. But the contentions in the case before us were in the alternative, and the plaintiff would not be precluded from arguing the correctness of the other contentions, if the case came here on exceptions. The case is here on a report, after an appeal by both parties, and all questions of law are open.
The first contention of the plaintiff is that on the facts of the case the plaintiff is entitled to a reassignment of the policy without paying any amount to the defendants or any of them. The argument in support of this contention is that the contract on the part of the wife was one of suretyship, and that the note was paid by the renewal of it without her knowledge. We are of opinion, however, that the wife did not stand in the relation of a surety to her husband. Both she and her husband at the time of the assignment had an interest in the policy. By its terms, on July 25, 1897, provided the policy had not been terminated by lapse or by his death, he had the option, first, to withdraw in cash the policy’s entire share of the assets of the insurance society, namely, the accumulated reserve, which was expressed to be $3,535.40, and in addition thereto the surplus apportioned by the insurance society; or,. secondly, to convert the same into a paid up policy. The interest of the wife was contingent upon her husband’s death before July 25, 1897. Each could assign his or her interest. But neither could assign the interest of the other, or defeat it in any way. The fact that it was payable to him in a certain contingency, which did not happen, is immaterial. Pingrey v. National Life Ins. Co. 144 Mass. 374, 383.
We are also of opinion that the note given for the original debt cannot, as matter of law, be said to have been paid by the second note. Whether this note operated as payment of the first note was a question of fact, depending on the intention of the parties and the other circumstances attending the transaction. Agawam National Bank v. Downing, 169 Mass. 297.
The plaintiff’s second contention in the court below was, that, if she was liable to pay anything to redeem her policy, she was entitled to an assignment upon paying the aggregate amount of the quarterly premiums paid by the Bussells, together with interest thereon from the date of the payment thereof at six per cent per annum. The third contention was, that in no event was she bound to pay more than the amount of the original loan with interest at six per cent and the quarterly premiums, with interest thereon at six per cent from the date of payment. The judge entered a decree in favor of the plaintiff, based upon her third contention.
The findings of fact do not make it entirely clear whether the plaintiff pledged her interest in the insurance policy as security for the original debt or for the original note. The judge finds as a fact “ that she did not ever consent br agree that the policy should be pledged or held by said Russell as security for any debt other than the note of $1,900, and interest thereon. She had no knowledge or notice that the said Russell claimed to hold said policy as security for any debt other than the original debt of $1,900, and interest thereon, until after the death of said Josiah B. Kendall, nor did she authorize her husband to pledge it for any other debt.” The note was for $1,900, paj'able six months from date, with interest after maturity at the rate of two per cent a month. This was a legal contract by the plaintiff’s husband, who signed it. Pub. Sts. c. 77, § 3. He at least was bound to pay the interest stipulated until payment or until
If, therefore, the finding of the judge is to be construed as a finding that the plaintiff pledged her interest in the policy as security for the note, a different rate of interest should have been allowed. But we do not so construe the finding. The latter part of the finding refers directly to the original debt, and the decree is based upon this finding.
The next question is as to the effect of the assignment of the policy, which was in form absolute. If the only authority which the wife gave the husband was to pledge her interest in the policy for the original debt, he was not her agent either to make the original note in the form in which it was made, or to make new notes: and. the fact that the assignment was absolute in form is immaterial. The consideration and the purpose of the transaction could be shown by oral evidence. Riley v. Hampshire County National Bank, 164 Mass. 482, 486.
The first part of the decree was, therefore, right.
The remaining question is as to the correctness of the last part of the decree, which obliges the plaintiff to repay the amount of all the premiums paid by Daniel W. Russell or his estate, with interest on each premium from the date of its payment to the date of repayment, at the rate of six per cent per annum.
We are of opinion that the decree in this respect was right. The plaintiff joined in pledging the property as security for a debt. The pledgee had to pay the premiums in order to keep the policy alive. We have already said that she must pay the debt with simple interest thereon ; and it is only equitable that she should repay the premiums paid by the pledgee, with simple interest from the time of each payment. This is not the case of a mere volunteer paying the premiums, or the part owner of a policy, as in In re Leslie, 23 Ch. D. 552. Nor is it the case of a payment made by a mortgagor to preserve the property, as in Falcke v. Scottish Imperial Ins. Co. 34 Ch. D. 234. It is the case of a payment by a pledgee, who had a right, as against the
Decree affirmed.