Cass v. Lord

• Decision Date: 22 November 1920
• Citation: 128 N.E. 716,236 Mass. 430
• Parties: CASS v. LORD et al. SAME v. AMERICAN CENTRAL INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 430

128 N.E. 716

CASS

v.LORD et al.

SAME

v.AMERICAN CENTRAL INS. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 22, 1920.

Exceptions from Superior Court, Worcester County; Nelson P. Brown, Judge.

Actions by Ira J. Cass against William G. Lord and others and against the American Central Insurance Company, wherein verdicts were directed for defendants, and plaintiff excepts. Exceptions in each case overruled.Johnson, Clapp, Ives & Knight, of Boston, for plaintiff.

James A. Stiles, of Fitchburg, for defendant Lord and others.

Brown & Came, of Boston, for defendant American Central Ins. Co.

BRALEY, J.

The question in the first case is whether there was any evidence which entitles the plaintiff to go to the jury. It is alleged in substance that the defendants verbally agreed to procure and deliver a valid policy of insurance against fire upon automobiles from time to time owned by the plaintiff in his business,or to insure such automobiles as the plaintiff might from time to time own and have on hand in connection with his business as an ‘automobile dealer,’ or to procure and deliver to the plaintiff a valid policy of insurance upon automobiles from time to time owned by the plaintiff in his business, and in the meantime ‘to insure such automobiles themselves.’ A valid oral contract for fire insurance binding the company before the issuance of a policy undoubtedly can be entered into as pointed out in the recent cases of McQuaid v. AEtna Insurance Co., 226 Mass. 281, 115 N. E. 428, and Mowles v. Boston Insurance Co., 226 Mass. 426, 115 N. E. 666, and an insurance agent can bind himself by parole to procure insurance, and if there is a breach of the contract he is liable in damages. Sargent v. National Fire Ins. Co., 86 N. Y. 626;Everett v. O'Leary, 90 Minn. 154, 95 N. W. 901. But to be valid and enforceable the contract must be mutually binding and supported by a consideration. The defendants having procured and delivered a policy binding the parties according to its terms, the plaintiff is forced to take the position that, independently of their principal, they also agreed to become personally liable as indemnitors, and acting solely for themselves to insure his property. Hewins v. London Assurance Corp., 184 Mass. 177, 182, 183, 68 N. E. 62;Stone v. Old Colony St. Ry., 212 Mass. 459, 464, 465, 99 N. E. 218. His own uncontradicted and uncontrolled statements and admissions of his contractual relations with the defendants, and on which he must rely are:

‘I knew that they were general agents and dealt with them as such. I did not expect they were going to insure my car themselves. * * * I relied on some contract they was to get for me from the insurance company.’

It also appears that all premiums were paid to them as general agents of the company. It is general law that where an agent as in the case at bar acts within the scope of his authority for a disclosed principal, he does not bind himself unless it appears that he expressly agreed to become personally responsible. Simonds v. Heard, 23 Pick. 120,34 Am. Dec. 41;Goodenough v. Thayer, 132 Mass. 152;Davis v. Cress, 214 Mass. 379, 101 N. E. 1081. The plaintiff having failed to introduce evidence from which a finding would have been warranted that the defendants bound themselves individually, the judge correctly ruled that he could not recover.

The second question is whether the action on the policy can be maintained. The contract consists of the policy, and of the rider or ‘slip,’ ‘Dealers Form Automobile,’ dated November 24, 1915, apparently attached to the policy December 15, 1915, the time when it was dated, countersigned and presumably delivered. It is of no consequence that the plaintiff did not read the policy, or the accompanying rider, or ‘know a single condition in it,’ but accepted and kept it in his safe until the fire. He is bound by the contract into which he voluntarily entered. Secoulsky v. Oceanic Steam Navigation Co., 223 Mass. 465, 466, 112 N. E. 151. The fifteenth clause of the rider declares that the agreements and stipulations contained in this form cancel and replace anything to the contrary printed in the policy, and accordingly under clause 5 the policy is--

‘to attach and cover upon automobiles, chassis, tops or other equipment while attached to and a part of automobiles owned by the assured and held by him for sale, from the time of delivery to the assured, and to continue until such property is delivered to the purchaser or until same otherwise passes out of the possession of the assured, * * * this period in no event to exceed twelve months or to extend beyond the termination’ of the policy.

The plaintiff contends that the words ‘automobiles owned by the assured and held by him for sale’ are ambiguous and open to explanation, and the understanding of the parties as to the character of the property actually covered or to be covered should have been passed upon by the jury. We perceive no ambiguity. The words are to receive their ordinary meaning; nor can the automobiles be classified thereunder as comprising ‘new cars, second-hand cars, and junk cars,’ some of which it was mutually understood the plaintiff did not intent to insure. Follins v. Dill, 229 Mass. 321, 118 N. E. 644;Hatch v. United States Casualty Co., 197 Mass. 101, 104, 83 N. E. 398,14 L. R. A. (N. S.) 503, 125 Am. St. Rep. 332,14 Ann. Cas. 290. The preliminary conversations between the plaintiff and the general agents before he ordered the policy, and conversations...