Allyn v. Allyn

• Citation: 154 Mass. 570,28 N.E. 779
• Parties: ALLYN v. ALLYN.
• Decision Date: 06 November 1891
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 570

28 N.E. 779

ALLYN v. ALLYN.

Supreme Judicial Court of Massachusetts, Hampden.

November 6, 1891

COUNSEL

J.L. Rice, for plaintiff.

H.W Ely and C.F. Ely, for defendant.

OPINION

MORTON J.

We think the decree in this case should be affirmed. It is evident from the agreement that the parties contracted with reference to the possibility that the buildings might be destroyed by fire. They expressly agree that the "party of the first part [the defendant] is to keep the premises insured for the benefit of the party of the second part, as his interest may appear;" and that, "if the party of the second part leaves the house vacant at any time, he is to pay for all extra insurance." The report states that at the time the agreement was entered into it was understood by the parties that the insurance of $800 which the defendant had procured in his own name sufficiently fulfilled his agreement to keep the buildings insured for the benefit of Stimpson, the other party to the contract. The parties having in their contract and by their acts provided relative to the destruction of the buildings by fire, the happening of that event can furnish no excuse to either party for refusing to carry out the agreement. In such a state of things no condition can be implied that the performance of the contract is dependent upon the continued existence of the buildings. The reasoning does not apply in the cases in which it has been held that both parties were excused from performance by the destruction before a breach of that which constituted an important part of the contract, but concerning whose destruction there was no provision in the contract. Wells v. Calnan, 107 Mass. 514. It follows that the defendant was not relieved from the performance of his contract by the fact that the buildings had been destroyed. That being so, it was for the plaintiff to elect whether she would pursue her remedy at law for damages for the breach of contract, or whether she would bring a bill in equity to compel performance of the contract. Woodbury v Luddy, 14 Allen, 1; Davis v. Parker, Id. 94; Cunningham v. Hall, 4 Allen, 268. She has elected the latter, and the question is, what is she entitled to from the defendant? She is entitled, in the first place, to a warranty deed of the land in the usual form, free from all incumbrances, upon payment of all sums due to the defendant; that is what the agreement calls for.

She sets up in her bill that she has offered to pay what is due, or, what is the same thing, has offered to allow the defendant to retain it from the proceeds of the insurance; and we do not understand that the defendant objects to the sufficiency of her offer, or of that which Stimpson had previously made. In the next place, upon the execution of the agreement, Stimpson, her assignee, acquired an insurable interest in the property to the extent of its full value. Strong v. Insurance Co., 10 Pick. 40; Gilman v. Insurance Co., 81 Me. 488, 17 Atl.Rep. 544; McGivney v. Insurance Co., 1 Wend. 85; Insurance Co. v. Tyler, 16 Wend. 385; Insurance Co. v. Lawrence, 2 Pet. 25.

The contract provided that...