Badger v. Platts

• Decision Date: 15 March 1895
• Citation: 44 A. 296,68 N.H. 222
• Parties: BADGER v. PLATTS. PLATTS v. BADGER.
• Court: New Hampshire Supreme Court

44 A. 296

68 N.H. 222

BADGER

v. PLATTS.

PLATTS

v. BADGER.

Supreme Court of New Hampshire. Hillsboro.

March 15, 1895.

Petition by Melvin Badger against George W. Platts to determine amount due on two real-estate mortgages, and writ of entry by Platts to foreclose the mortgages. Case discharged.

(1) Petition for the determination of the amount due on two real-estate mortgages; and (2) writ of entry to foreclose the mortgages. Facts agreed: June 24, 1892, the mortgaged premises were conveyed to Melvin Badger, who assumed the payment of a note for $1,500 held by Gilman Clough, secured by a mortgage of the premises, and a note for $1,800 held by Freeman N. Thurber, secured by a second mortgage of the premises. The buildings were insured for $2,000 in the North British & Mercantile Insurance Company, payable in case of loss to Thurber, second mortgagee, as his interest might appear, subject to prior payment to Clough as his mortgage interest might appear, and in the Phoenix Assurance Company for $700, payable in case of loss to Thurber as his mortgage interest might appear. Both policies were originally issued to Thurber, and were assigned to Badger, the companies assenting thereto. July 24, 1892, the buildings were destroyed by fire. Before and after the conveyance to Badger, a portion of the buildings was occupied by a tenant, and used as a laundry. Naphtha or gasoline was used to run an engine in the laundry, and the fire was caused by an explosion of naphtha while being lighted by an employe of the tenant. This use of naphtha was unknown to Clough, and Badger claimed it was unknown to him. Proper proofs of loss were made to both companies. The North British & Mercantile Company claimed that the fire was caused by the unauthorized use of naphtha or gasoline on the premises. September 21, 1892, Augustus Champlin, resident secretary of the North British & Mercantile Company, without the knowledge or consent of Badger, paid Clough $1,528.75, the amount due on his note, less additional premium charged for extra risk from use of naphtha. Clough indorsed the note without recourse, and assigned the mortgage securing it to Champlin as resident secretary. September 22, 1892, Champlin paid Thurber $443.75, which Thurber indorsed on his $1,800 note. When these payments were made, Champlin received from Clough and Thurber the sum of $27.50 as additional premium for extra hazard incurred by reason of the use of naphtha on the premises. September 22, 1892, Champlin. without the knowledge or consent of Badger, sold the Clough note to Platts for $443.75, indorsed it without recourse, and assigned the mortgage securing it to Platts. At that time the $1,800 note and mortgage were held by the New Hampshire Trust Company as security for a note on which Platts was holden as a signer with Thurber. Platts paid the trust company note, and took the collateral, thus becoming the holder of the $1,800 note and the mortgage securing it. It is agreed that there was due on the $1,800 note, January 23, 1893, $506.15. Platts contended that there was due him on the Clough note the full amount thereof, while Badger contended that the payment to Clough by Champlin extinguished the mortgage debt, and that nothing is due thereon. The policy of the North British & Mercantile Insurance Company was the New Hampshire standard form of policy, and contained the following provisions: (1) "This policy shall be void * * * if camphene, benzine, naphtha, or other chemical oils or...