164 Mass. 302 | Mass. | 1895
1. We are of opinion that the first request for instructions should have been granted.
2. The second request for instructions was properly refused. The bill of exceptions on this point is as follows: “ There was no evidence that the plaintiff personally had ever demanded payment of the policy at the office of the company in Burlington, but she testified that she had demanded payment from .the agent of the company at 40 Water Street, Boston; and the defendant asked the court to rule that, in the absence of such evidence, this action could not be maintained, but the court refused said request, and the defendant excepted thereto.”
Treating the request literally, it would be enough to say that, if a demand was necessary at Burlington, the plaintiff was not
It is no bar to an action on a promise to pay money that the promisee was not present at the time and place appointed for payment. Ruggles v. Patten, 8 Mass. 480. Carley v. Vance, 17 Mass. 389. Payson v. Whitcomb, 15 Pick. 212. In Carter v. Smith, 9 Cush. 321, in an action on a promissory note payable at a time fixed at either of the banks in Portland, the defendant objected that the plaintiff must prove a demand. This objection was overruled, and this court, Chief Justice Shaw giving the opinion, overruled the defendant’s exceptions, with double costs.
It is for the promisor to show in defence that he was ready to pay, and he must make a tender accompanied by a proferi in curia. Carley v. Vance, and Carter v. Smith, ubi supra.
3. The third request for instructions, that the evidence was insufficient to establish that the proof of death had been furnished in accordance with the requirements of the policy, was properly refused. It is true that the promise to pay in the policy is “ at its [the defendant’s] office in the city of Burlington . . . in ninety days after satisfactory proof, at its said office, of the death of the said insured.” The proof of death was made out on blanks furnished by the company, was taken to the office of the defendant in Boston, and there received by a person apparently in charge of the office, who promised to forward it to Burlington; and it was produced at the trial by the defendant’s counsel. It was admitted that the proof was regularly and properly made out. No evidence was produced by the defendant to show that it was not received at Burlington. We are of opinion that the jury were well warranted in finding against the defendant on this issue.
The question did not call for the past occupation of the insured, as in Dwight v. Germania.Ins. Co. 103 N. Y. 341, but for his occupation at the time of the application. The question was submitted to the jury under instructions not now objected to by the defendant. The defendant on this point has relied solely upon the refusal of the judge to rule that the plaintiff could not recover, because the answer of the insured was not full, complete, and true. On the evidence, such a ruling was rightly refused. It was for the jury, upon the evidence, to say what the applicant’s occupation was at the time the answer was made. The statement made by the plaintiff was evidence against her, but was not conclusive.
5. It is within the power of the Superior Court to allow an amendment of the writ, substituting for her name as plaintiff the name of the administrator of her husband’s estate, as nominal plaintiff, for her benefit. Winch v. Hosmer, 122 Mass. 438. Costelo v. Crowell, 134 Mass. 280. Lewis v. Austin, 144 Mass. 383. As the defendant’s exceptions on the merits have been overruled, there seems to be no reason why the case should be tried again, or why, if the amendment above suggested be allowed, judgment should not be entered on the verdict. Pierce v. Charter Oak Ins. Co. 138 Mass. 151, 164. As the judge erred in refusing to give the first instruction requested, the entry must be
Exceptions sustained.
The defendant requested the judge to rule that the action could not be maintained by the plaintiff, but only by the administrator of the estate of the insured.