120 Mass. 267 | Mass. | 1876
The settlement which was had between these parties February 4,1873, has the appearance of being intended as a termination of their dealings with each other, and a final ad justment of their mutual demands. The natural and most obvious inference from the mutual surrender and cancellation of papers would be that, on the one hand, the plaintiffs were released from all liability for any premium on the vessel after the period charged in the settlement, and that on the other hand no
It is true that at the date of this settlement neither party knew that the vessel had been lost on the preceding day. But both parties knew that the vessel was on a distant voyage, and was exposed to the perils of the seas. All that they could know was that when she was last heard from she had not been lost. They did not know that she had not been lost since that time. The plaintiffs knew that they were paying for insurance only up to the latter part of the previous November; and they were content to surrender their policy, without making any reservation of any claim under it for any possible or then unknown loss that might have occurred. They knew also that the defendant not only gave up all claim for any premium after the close of the second year of the policy, but also gave up $154 which the defendant had a perfect right to retain as a partial set-off against any further claim which the plaintiffs could in any event make against the defendant. There can be no doubt that the plaintiffs could release contingent and unknown claims, as well as those which had been ascertained, The settlement must have called to their attention the question as to the continuance of the insurance; and though they did not know the fact of the loss, they at least knew the continuance of the risk. Then was the time for them to insist that they should claim indemnity for any loss that might have occurred, not then known; and to notify the defendant that, in surrendering the policy, they did not surrender, but intended to reserve, all contingent and possible claims up to that date. Not having done so, they must be con sidered as surrendering not only the policy, but all claims and demands arising therefrom. Judgment for the defendant.