Whiting v. Burkhardt, 178 Mass. 535

Whiting v. Burkhardt

178 Mass. 535 | Mass. | 1901

Loring, J.

The assignment by Jewell of all his right and interest in the policy was not a violation of the provision that the “ policy shall be void . . . if . . . without the assent in writing or in print of the company . . . this policy [shall be] assigned.” The object of that provision, (coupled with the provision declaring the policy void if the property insured is sold,) is to prevent the company becoming the insurer of the property of a person who is not acceptable to it; an insurance company has the right to refuse to insure a person whose character is such that the moral risk (to use a term employed in the insurance business) is greater than it is where the same property is owned by an honest man, and is a risk, which they do not care to assume. The transfer prohibited by this provision is a transfer of the contract of insurance; that is to say, a transfer by Guptill and Burkhardt, the persons insured; not a transfer by Jewell, who was the person designated as the person entitled to receive the proceeds of the insurance, if any, due under the contract between the company on the one hand and Guptill and Burkhardt on the other. The distinction is plainly and fully pointed out in Fogg v. Middlesex Ins. Co. 10 Cush. 337, 346; Phillips v. Merrimack Ins. Co. 10 Cush. 350, 353; New York Mutual Ins. Co. v. Allen, 138 Mass. 24, 28, 29; Merrill v. Colonial Mutual Ins. Co. 169 Mass. 10, 13, 14. What Jewell did by assigning his “ right and interest in this policy ” was not to transfer the policy, but to assign to another his right to receive the proceeds, if any, under it; the policy remained after the assignment,. as it was before, the policy of Guptill and Burkhardt.

We see no reason why Jewell should not make the assignment made by him; the policy was madó payable to him as “ mortgagee, as his interest may appear ”; he assigned his right to receive the proceeds, if any, to the assignee of the mortgage in question, and the plaintiff’s right to receive the proceeds of the insurance was subject to this clause in the hands of the plaintiff and could not be held by him for any debt other than the debt secured by that mortgage.

*539The conveyance by Guptill of his interest in the building insured did not affect the right of the plaintiff to recover in case of loss; it is provided in the policy, that “ If this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee or his agents, or those claiming under him, shall affect such mortgagee’s right to recover in case of loss on such real estate.” This mortgage was originally made payable to “ Jewell, mortgagee,” and after the assignment by Jewell of his interest to the plaintiff, who had in fact become the assignee of the mortgage in question, it continued to be “ payable to a mortgagee,” and, as we have said, it could not have been held by the plaintiff for any debt other than the mortgage debt in question.

The objection that there is a plain, adequate and complete remedy at law was not set up in the answers or any of them, and being raised for the first time in this court, is not taken in time. Jones v. Keen, 115 Mass. 170. Crocker v. Dillon, 133 Mass. 91. Parker v. Nickerson, 137 Mass. 487.

A decree must be entered directing the defendant insurance company to pay to the plaintiff the amount of the policy with interest from September 4, 1899.

iSo ordered.