Breetear v. Rockingham Farmers' Mut. Fire Ins. Co.

• Decision Date: 03 June 1902
• Citation: 71 N.H. 445,52 A. 860
• Parties: BREETEAR et al. v. ROCKINGHAM FARMERS' MUT. FIRE INS. CO.
• Court: New Hampshire Supreme Court

52 A. 860

71 N.H. 445

BREETEAR et al.

v. ROCKINGHAM FARMERS' MUT. FIRE INS. CO.

Supreme Court of New Hampshire. Hillsboro.

June 3, 1902.

Transferred from superior court; Stone, Judge.

Action by Joseph Breeyear and others against the Rockingham Farmers' Mutual Fire Insurance Company. Case transferred on agreed facts. Judgment for the Pittsfield Savings Bank.

August 23, 1897, Breeyear took out a policy in the defendant company insuring him against loss by fire in the sum of $700 upon his buildings. Dearborn had a mortgage upon the property to secure the payment of $700, and the policy was made payable to him as mortgagee in case of loss as his claim might appear. November 26, 1897, Dearborn sold and transferred the mortgage to Louise Beaudry, and assigned his right in the Insurance, as follows: "I hereby assign my right as mortgagee to Louise Beaudry." March 29, 1898, Beaudry borrowed $400 of the Pittsfield Savings Bank, and pledged the Dearborn mortgage as security, delivering therewith to the bank the policy of insurance with the following indorsement upon it, signed by her: "I hereby assign my right to ）——." The bank has held the policy ever since. June 23, 1898, Breeyear conveyed the property to Beaudry. June 5, 1899, Beaudry took out a policy in the Granite State Fire Insurance Company insuring her against loss by fire in the sum of $700 on the same buildings. She did not disclose to the company the existence of the prior insurance. The buildings were destroyed by fire April 21, 1900. No notice of the abovementioned transfers, or of the conveyance of the property from Breeyear to Beaudry, or of the subsequent insurance, was given to the defendants prior to the fire, and they had no knowledge of the same. The defendants' policy contained a provision that it should be void if, without the assent in writing or in print of the company, the insured had other insurance on the property at the time of loss, or if, without such assent, the property should be sold or the policy should be assigned. It also contained the provision relating to the rights of the mortgagee copied in the opinion. The defendants are a mutual company. The premium was paid by a note upon which an assessment was made In September, 1899. The bill for the assessment was returned by an agent uncollected.

George B. French, for Pittsfield Sav. Bank.

Henry A. Shute, for defendants.

CHASE, J. The assignments by Dearborn to Beaudry and by Beaudry to the bank were not assignments of the policy, but of the assignor's right as mortgagee to the insurance in case of loss as provided in the policy. The object of the provision, which prohibited an assignment of the policy without the assent of the company, was to prevent an increase of the moral risk by the substitution of a person for the insured in whose custody and care the property would be more likely to be burned. The assignments made no such substitution. Breeyear continued to be the owner and custodian of the property until he conveyed it to Beaudry, nearly three months after the date of the last assignment. The assignments did not conflict with the terms or the purpose of this provision, and afford no defense to the bank's claim. Whiting v. Burkhardt, 178 Mass. 535, 60 N. E. 1, 52 L. R....