99 Me. 273 | Me. | 1904
Mr. Lyford, the plaintiff, while the owner of a certain lot of land and the buildings thereon, insured the buildings in the defendant insurance company. Afterward while the insurance policy was in force he conveyed the land and buildings to Mr. Brawn. A week after this conveyance the buildings were destroyed by fire. Nothing further appearing, it is evident the plaintiff cannot recover for the loss of the buildings because he had no interest in them at the time of the fire and suffered no loss. It is also evident that Mr. Brawn, the then owner and the sufferer of the loss, cannot recover of the defendant company for such loss because he had no contract with it. The defendant never agreed to indemnify him. The same objection applies to this action by Mr. Lyford, if for the benefit of Mr. Brawn. “A contract of insurance (life excepted) is an agreement by which one party for a consideration promises to pay money or its equivalent or do some act of value to the assured upon the destruction or injury of something in which the other party has an interest.” B. S., ch. 49, sec. 1. In order to recover insurance, a plaintiff must have both an interest and an existing contract at the time of the destruction or injury of the property.
But the plaintiff seeks to avoid this conclusion by other circumstances, viz: On the back of the written policy of insurance was a blank form of assignment. At the time of the conveyance of the buildings Mr. Lyford filled out this blank form with an assignment to Mr. Brawn and signed and sealed it. He also promised Mr. Brawn to procure the assent of the company to this assignment, but did not do so, and did not apply for such assent. He claims that the printing this blank on the back of the policy was an invitation by the company to the assured to sell the property and assign the policy before obtaining the assent of the company, and was an assurance to the purchaser that he might purchase first and be sure of the company’s assent if applied for within a reasonable time afterward. He offered to prove that it had been the custom of the company to allow
The contention is that under all these circumstances, assuming them proved, the policy of insurance remained in force and an action can be maintained upon it for the benefit of the owner of the property. This contention hardly meets the real question, which is whether before the fire the defendant company had made a contract of insurance with Mr. Brawn or for his benefit? The original contract was with Mr. Lyford for his benefit, and expired by operation of law as well as by its own terms when he parted with his interest. There was no longer any contract with him. That contract was not negotiable. On the contrary it was stipulated in the policy that its assignment without the written consent of the company should avoid it. It could not be transformed into a contract with Mr. Brawn or for his benefit until the assent of the company was obtained. That assent was never obtained, and never even applied for. It might have been withheld if applied for. The original contract with Mr. Lyford was a purely personal one. The law did not annex it to the property insured and no mere custom can so annex it, even for a limited time however short. However uniform the defendant’s custom to assent in other cases with other persons, it might still decline to insure Mr. Brawn or to revive the policy for his benefit. After all is said that can be said in this case these facts remain patent: that the company stipulated that the policy should be void without its written assent; that before the fire it had no knowledge of the assignment and did not assent to it; that it had no knowledge of Mr. Brawn and made no contract to insure him. These fagts are decisive against the plaintiff’s contention.
The plaintiff advances two other propositions, viz: (1) that sundry acts and letters of officers and agents of the defendant company, after the fire, operated as a waiver of any forfeiture under the conditions of the policy; and (2) that the refusal of the defendant company to submit the question of damages to arbitration as required by the policy, let the plaintiff in to recover them directly on the policy.
It follows that the plaintiff cannot recover for himself nor for Mr. Brawn for the loss of the buildings. The rulings of the presiding justice to that effect were right, and the judgment must be,
Exceptions overruled.
