138 Mass. 151 | Mass. | 1884
The declaration considered apart from the policy is unintelligible. It does not allege that Alanson K. Josselyn
The evidence showed that only a part of the premiums had been paid, and that by the policy only a part of the sum insured was payable, and tended to prove a case under special provisions of the policy to which there was no reference in the declaration.
The Pub. Sts. e. 167, § 2, el. 9, requiring written instruments to be declared on by “ setting out a copy or such part as is relied on, or the legal effect thereof,” except policies of insurance. Of the two forms of declarations on policies of insurance annexed to this chapter in the statutes, one assumes that a copy of the policy is annexed to the declaration, and the other that it is not.
The reason for excepting policies of insurance in the statute was, probably, that they are often of great length, and contain a multitude of provisions and conditions that may have no bearing on the particular ease, and it was thought to be sufficient if
It was not necessary that the plaintiff should allege in his declaration the facts that defeated a part of his claim under special provisions of the policy.
The exceptions to the admission of the record of the insurance commissioner, and of the letter of December 14, 1874, received from the assistant secretary of the company, were waived at the argument; and the exception to the admission of the letter from the assistant secretary of November 13, 1877, has not been pressed, and is untenable.
By the policy, if Alanson K. Josselyn “ shall survive until the eighth day of November, 1877, then the said amount insured shall be paid to him, deducting therefrom the amount of all unpaid notes given for premiums or loans by them on this policy, and all deferred premiums, if any, then existing.” This interest in the policy Alanson IL Josselyn could assign, and did assign to the plaintiff, as collateral security for the payment of two promissory notes given by him. That his wife joined with him in the assignment does not detract from the effect of his assignment ; and it is not necessary to consider what would have been the effect of her assignment if her husband had died before November 8, 1877.
But the plaintiff cannot maintain this action in his own name, unless the defendant has expressly or impliedly promised to pay him as assignee. Grant v. Wood, 12 Gray, 220. Burrows v. Glover, 106 Mass. 324. Tate v. Citizens’ Ins. Co. 13 Gray, 79. The policy provides “that, if assigned, written notice shall be given to said company.” Such notice was given, and the company, in writing, on July 6, 1874, “ hereby acknowledge notice of the foregoing assignment subject to the conditions and restrictions of said policy.” This is not a promise to pay the plaintiff as assignee. In July, 1874, it could not be known whether Alanson K. Josselyn would live until November 8,1877, and if he died before that daj% the sum insured was payable, on his death, to his wife and children. If he left children, the wife alone could not assign the whole sum insured. The company
If A. K. Josselyn lived until November 8, 1877, he was the proper person to sue for the sum insured. The policy was not under seal. Flynn v. North American Ins. Co. 115 Mass. 449. Brigham v. Home Ins. Co. 131 Mass. 319. The insurance was on his life; the promise was to pay him; and in fact he was not a stranger to the consideration, for although the policy recites a payment of an annual premium by his wife and children, the exceptions state that the premium for the six years in money and notes was actually paid by him. If the declaration alleges any promise by the defendant to pay the plaintiff the sum insured, it must be inferred from the allegations made of the assignment, and of the written acknowledgment of notice of it by the company. We think this is not in effect an allegation of a promise to pay the plaintiff, as we have held that the written acknowledgment did not amount to such a promise.
There was evidence of the assignment of the policy to the plaintiff as collateral security for the payment of two notes given by A. K. Josselyn, on which $2700 remained due, at the time of the trial. This is a good, existing assignment as between Josselyn and the plaintiff, and would enable the plaintiff to maintain a suit in Josselyn’s name.
The next objection is, that there is no evidence that more than three complete annual premiums have been paid. The policy provides that the company “ assure the life of Alanson K. Josselyn .... in the amount of five thousand dollars or after the due payment of premium for two or more years, if default shall be made in the payment of any subsequent premium, for as many tenth parts of the original sum insured as there shall have been complete annual premiums paid.” The policy contains in the margin the following words and figures: “ Annual premium. $562.50 ; Payable $281 note, $281.50 cash, each 12 months from Nov. 8, 1867.” The letter of the assistant secretary, of December 14,1874, acknowledges that premiums have been paid up to November 8, 1873. The exceptions state that, “ By the
The notes held by the company are payable in twelve months after date, with interest, and are respectively for $535, $141, and $135, and dated November 8, 1870, November 8, 1871, and November 8,1872. The policy is dated November 8, 1867. It is plain that the cash paid was more than the whole amount of premiums for two years, even if the construction to be given to the words “ after the due payment of premium for two or more years,” found in the clause we have cited, requires that the payment be made in money. We think, however, that this is not the true construction, but that these words, as well as the words <6 complete annual premiums paid,” found in the same clause, mean, that the payment of premiums shall be made according to the terms of the policy; that the words in the margin which have been cited are a part of the policy, and that by the contract the annual premium is to be paid $281 by note, and $281.50 in cash, and that, on the evidence, it was competent for the court to find that six complete annual premiums had been paid, and that six tenths of the sum insured were payable, less the outstanding notes. The company is protected by the provision in the policy, that from the amount insured there shall be deducted “ the amount of all unpaid notes given for premium or loans by them on the policy, and on deferred premiums, if any, then existing.”
The evidence offered by the defendant for the purpose of reforming the policy by substituting 1879 for 1877, as the time when, if Josselyn survived, the sum insured became payable to him, was rightly rejected. Written contracts cannot be reformed in actions at law by oral evidence of clerical mistakes.
The defendant contends that the letter written by Josselyn on August 28,1879, notifying the company not to pay the policy to the plaintiff, was improperly rejected, because, it is said, it was competent upon the question of interest. It is not necessary to
It was therefore in this case necessary to allege and prove a demand, or other facts from which an obligation to pay interest arises, in order to recover interest before the date of the writ. The company was entitled to proof that Josselyn survived until November 8,1877, before it can be said to have unjustly withheld the money from him or his assignee. The declaration is as unsatisfactory in its allegations concerning interest as in every other respect. It alleges that the defendant agreed to pay or cause to be paid the said sum insured “ninety days after due notice and satisfactory evidence of the just claim of the assured, or proof of interest if assigned,” &c., “ has been received and approved by the company,” and that the defendant owes the plaintiff “ the said sum of five thousand dollars and interest thereon from November 8, 1877, ninety days after due notice having elapsed, and satisfactory evidence of the just claim of the assured, and of the assignment to plaintiff, having been made.” The provision in the policy for ninety days’ due notice and satisfactory evidence of the death of Josselyn, and of the just claim of the assured, have no application if he survived until November 8, 1877, and the sum insured became payable to him. By the assured in the policy are meant Josselyn’s wife and children.
But the plaintiff may apply to the Superior Court for leave to remit the interest from November 8, 1877, to the date of the writ, and to amend his writ by substituting for himself as plaintiff the name of Alanson K. Josselyn, as nominal plaintiff; and, if this is allowed by that court, with or without terms, as that court may order, judgment may then be entered on the finding for the amount remaining after the remission; otherwise, the entry must be Exceptions sustained.