Eliot Five-cent Sav. Bank v. Commercial Union Assur. Co.

• Citation: 142 Mass. 142,7 N.E. 550
• Parties: ELIOT FIVE-CENT SAV. BANK v. COMMERCIAL UNION ASSUR. CO. [*]
• Decision Date: 30 June 1886
• Court: United States State Supreme Judicial Court of Massachusetts

142 Mass. 142

7 N.E. 550

ELIOT FIVE-CENT SAV. BANK v. COMMERCIAL UNION ASSUR. CO. ^[*]

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1886

COUNSEL

H.G. Allen and J.L. Thorndike, for plaintiff.

M. & C.A. Williams, for defendant.

OPINION MORTON, C.J.

By the policy in suit the defendant insured "George B. Taylor payable, in case of loss, to Eliot Five-cent Savings Bank mortgagees, as interest may appear," on the Hotel Clifton, in the sum of $5,000, for five years from July 1 1881. The policy is in the standard form prescribed by Pub.St. c. 119, c. 139, and St.1881, c. 166, § 1; and contains the provision that, "if this policy shall be made payable to a mortgagee of insured real estate, no act or default of any person other than such mortgagee, or his agents, or those claiming under him, shall affect such mortgagee's right to recover in case of loss on such real estato: provided, that the mortgagee shall, on demand, pay according to the established scale of rates for any increase of risks not paid for by the insured; and whenever this company shall be liable to the mortgagee for any sum for loss under this policy for which no liability exists as to the mortgagor or owner, and this company shall elect, by itself, or with others, to pay the mortgagee shall assign and transfer to the companies interested, upon such payment, the said mortgage, together with the note and debt thereby secured."

The policy also contains the provision that in case of any loss or damage the company, within 60 days after the statement or proof of loss, "shall either pay the amount for which shall be liable, or replace the property with other of the same kind and goodness, or it may, within 15 days after such statement, notify the insured of its intention to rebuild or repair the premises, or any portion thereof separately insured by this policy, and shall thereupon enter upon said premises, and proceed to rebuild or repair the same with reasonable expedition."

The building insured was damaged by fire, November 29, 1883, and within a few days thereafter an agent of the defendant and an agent of the plaintiff examined the premises, and appraised the amount of loss at $4,488, to recover which sum this suit is brought, the writ being dated June 16, 1884. At the time the policy was issued, and at the time of the loss, the plaintiff held a mortgage upon the premises to secure the note of the said George B. Taylor for $12,000. On December 26,1883, the plaintiff delivered to the defendant a proof of loss, signed and sworn to by Abbie E. Taylor, to whom George B. Taylor had conveyed the premises since the policy issued; and on March 22, 1884, more than 60 days before this suit was brought, the plaintiff delivered to the defendant another proof of loss, signed and sworn to by the assured, George B. Taylor. The defendant received and retained both of these proofs without objection, and though twice asked, in writing, to inform the plaintiff if it required or wished for any further statement, remained silent, and made no reply. It must be held to have waived any defects in the proof of loss, if any existed.

If we assume, as claimed by the defendant, that the conveyance by George B. Taylor to Abbie E. Taylor, without the consent of the company, avoided the policy as to them, yet, under the first clause above cited, it would not affect the right of a mortgagee to recover.

But the defendant relies upon two grounds of defense.

One is that the plaintiff, by its acts in entering upon and repairing the premises immediately after the fire deprived the defendant of its right to elect to rebuild or repair the premises within 15 days after the proof of loss. It appears that nine days after the fire, and after the agent...