127 Mass. 499 | Mass. | 1879
The plaintiff by his declaration admits that the proceedings of the defendant corporation, in advertising and selling the land described in the mortgage to it, were in accordance with the terms of the power contained in the mortgage ; and seeks to recover an alleged surplus of proceeds of the sale, remaining after satisfaction of the mortgage debt and of subsequent mortgage debts, and the expenses incurred by the defendant for insurance and in making the sale and conveyance to the purchaser. The defendant before suit admitted that a surplus of proceeds was in its hands, and tendered the amount which, in its opinion, was due. The plaintiff claimed seventeen dollars and a half more than was tendered, and, on the refusal of the defendant to pay that additional sum, brought this action of money had and received for the whole surplus. The controversy was as to this sum of seventeen and one half dollars.
The evidence showed substantially these facts: The defendant, acting under authority given by the mortgage, obtained from a fire-insurance company a policy on the buildings covered by the mortgage, running to the plaintiff, but made payable in case of loss to itself as mortgagee, as its interest might appear. The policy was obtained without the knowledge of the plaintiff, but he was informed of- it before the sale. The premium was twenty dollars and fifty cents, and the term of the policy was five years. The policy contained the following pro
The sale of the premises under the power was made within three months after the policy was issued. A few days after the sale, of which the plaintiff had actual knowledge, the defendant’s president took the policy to the office of the agent of the insurance company, and informed him of the sale, and asked what could be done with the policy, in reply to which the agent said it could be cancelled and a new one made to the purchaser. The president said, “Very well.” He gave no directions about the disposal of the policy or the proceeds of it, and made no claim of property in the policy on behalf of the defendant. Before seeing the agent, he had told the purchaser that the defendant had nothing to do about the policy. The agent of the insurance company cancelled the policy to the plaintiff, and issued a new one to the purchaser of the mortgaged premises, in consideration of the old policy cancelled. The value of the premium on the un expired term of the plaintiff’s policy was seventeen dollars and fifty cents. The defendant, in accounting for the proceeds of the sale, charged the plaintiff with the whole premium paid, and did not credit him with anything on account of the value of the premium for the unexpired term when it was cancelled.
At the trial, the parties agreed that there was no fact in dispute, and the judge ordered a verdict for the plaintiff for the amount tendered by the defendant, and reported the case to this court; judgment to be entered on the verdict, if the ruling was correct; otherwise, for the plaintiff for the full amount claimed.
We are of opinion that the ruling was correct. The policy showed that the defendant had no interest in it, except as secu