The plaintiff, a corporation, has brought suit to recover damages for loss by fire to premises described in a policy of fire insurance in the Massachusetts standard form issued by the defendant corporation in December, 1926, insuring the then owners for a three-year period against loss or damage by fire in the sum of $4,000 payable in case of loss to the plaintiff “Mortgagee, as interest may appear under the present or any future mortgage.” Two years later the plaintiff foreclosed its mortgage and became the owner of the property by purchase at the foreclosure sale. The defendant thereupon attached to the policy and delivered to the plaintiff a rider dated December 13, 1928, stating that the plaintiff having foreclosed its mortgage, “on and after date this policy shall attach in the name and for the benefit of Trustees of Thayer Academy.” After having been the owner in fee of the property for about seven months, the plaintiff sold and deeded it to one Contanos and took back from him a mortgage in the sum of $4,000. At that time, July 12,1929, another rider entitled “Transfer of Title” was attached to the policy by which the plaintiff transferred, assigned and set over unto Contanos “all title and interest in the within Policy, and all advantages to be derived therefrom.” This was assented to by the defendant. On or about the same day the plaintiff’s treasurer told an employee of an agent of the defendant that the plaintiff had taken back a mortgage. No contract either oral or in writing was made by the defendant covering the plaintiff’s interest as mortgagee. At some time later and before the fire, which was on December 4, 1929, Contanos conveyed the property to one Frank, but the policy was never assigned
The policy as originally issued contained a contract of insurance between the defendant and the then owners and a contract of insurance between the defendant and the
The plaintiff contends that the words in the policy as
In Attleborough Savings Bank v. Security Ins. Co. 168 Mass. 147, 149, the words in a policy making it payable to a mortgagee “as its interest shall appear” were construed. That phrase was interpreted as having reference to the amount which at the time of loss might be due the mortgagee on the mortgage debt originally called to the attention of the insurer and as intending to provide for the event of a diminution of the amount of that debt. The additional words here found “under the present or any future mortgage” have since that decision come into use in conveyancing practice. They undoubtedly broaden somewhat the obligation of the insurer, but we cannot under the established rules for the construction of contracts so construe the words as to include a mortgage interest acquired by the plaintiff long after it had become the owner in fee by foreclosing its original mortgage and as owner had entered into a new and different contract of insurance with the defendant. In Amory v. Reliance Ins. Co. 208 Mass. 378, where similar
When the plaintiff sold the property it assigned to the purchaser “all title and interest in the within Policy, and all advantages to be derived therefrom.” The defendant assented to this assignment and thereby became liable only to the purchaser in case of loss. There was no reassignment of the policy by the purchaser to the plaintiff to cover the new interest in" the property that it then took as mortgagee. The plaintiff divested itself of all interest in the policy by its assignment. That assignment operated “to discharge the rights and obligations incident to the original parties, and by agreement of the parties and operation of law gives birth to a new contract between the insurer and the assignee upon the old terms.” Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108, 110. Wilson v. Hill, 3 Met. 66, 69.
The custom which the plaintiff proposed to show by its expert witness was directly contrary to the terms of the contract then made and hence was not admissible. Boruszweski v. Middlesex Mutual Assurance Co. 186 Mass. 589, 593, and cases cited.
There being no error in the rulings made by the judge, judgment must be entered for the defendant.
So ordered.