282 Mass. 323 | Mass. | 1933
These are three actions of contract tried together, wherein the plaintiff seeks to recover fire insurance under four policies purporting to cover a one-story summer restaurant building known as “Ye Turnpike Inn” in New-bury, Massachusetts. All the policies were in the form prescribed by G. L. c. 175, § 99, and in all of them one Leslie R. Brown was named as the insured. Each policy contained a clause that the “Loss, if any, on real estate” was payable to the plaintiff as “First Mortgagee.” The property is described as follows: “one story summer restaurant building and additions thereto, connected by veranda, covered passageways, or otherwise, including foundations, additions, extensions, communications and piazzas”; then follows a recital of a considerable number of chattels, “belonging or appertaining to the building, known as Ye Turnpike Inn . . . Newbury Massachusetts JÍ
The cases were tried to a jury. The evidence consisted of the testimony of witnesses called by the plaintiff and certain facts embodied in a written statement introduced at the trial which is printed in the record. It was therein agreed as follows: On October 1, 1922, one Heber Little owned certain land on the Newburyport Turnpike and executed to Lilla S. Hill a lease thereof for ninety-nine years. The lease contained the following clause: “Lessors, their heirs, administrators, executors or assigns will permit the lessee, her heirs, administrators, executors or assigns to remove any and all buildings which are now on or may be erected or may alter or„ build,' at their desire.” This lease was duly recorded in the registry of deeds. Lilla S. Hill erected upon the • leased land a one-story wooden building which had no cellar and was named “Ye Turnpike Inn.” On October 31, 1925, she gave to the plaintiff á mortgage on the property to secure the payment of a note. " The mortgage was entitled “Mortgage of Personal Propérty” and contained the following recital: “The following goods and chattels, namely: The building known
It is agreed that “due to some misunderstanding between Mr. and Mrs. Tibbetts and a certain person whom they had employed or supposed they . . . [had] employed for the purpose, the assent of the defendants to the sale of the property described in the policies and to the assignments thereof was not obtained and the defendants did not know about them until after the fire” which occurred on July 6, 1929, and the property was destroyed. After the fire William A. Tibbetts “acting through and in the name of . . . Brown” endeavored to collect the insurance, but the defendants, learning of the sale of the property and of the
It is clear from these letters that the defendants denied liability, and that no defence was waived. The building, consisting of a single story, had no cellar and rested partly on a ledge and partly on wooden posts. It is plain that it was personal property and not real estate. Hartwell v. Kelly, 117 Mass. 235. Ryder v. Faxon, 171 Mass. 206. Swift v. Boyd, 202 Mass. 26. Noyes v. Gagnon, 225 Mass. 580, 584. The cases were presented on the theory and assumption of the parties that the building was personal property. The standard form of a fire insurance policy set forth in G. L. (Ter. Ed.) c. 175, § 99, provides in part as follows: “If this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee or his agents, or those claiming under him, shall affect such mortgagee’s right to recover in case of loss on such real estate . . . .” No similar provision is found in the standard form respecting the
It is not necessary to determine whether the plaintiff is
Exceptions overruled.