Equitable Marine Ins. Co. v. Adams

• Decision Date: 19 May 1899
• Citation: 173 Mass. 436,53 N.E. 883
• Parties: EQUITABLE MARINE INS. CO. v. ADAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 436

53 N.E. 883

EQUITABLE MARINE INS. CO. v. ADAMS.

Supreme Judicial Court of Massachusetts, Barnstable.

May 19, 1899

COUNSEL

Raymond A. Hopkins and C.H. Stebbins, for plaintiff.

William A. Morse, for defendant.

OPINION

HOLMES J.

This is an action of contract upon an indorsement of a premium note given to the plaintiff company. The case was sent to an auditor, who found for the plaintiff, but gave no grounds and set forth no evidence. Therefore we must assume the finding to mean that the defendant indorsed the note pending the policy in consideration of the company's assenting to a transfer of it, as is alleged in the declaration. At that time the defendant was assignee in insolvency of one S.S Swift, to whom the policy originally was issued. In the superior court the case was heard on the auditor's report. The defendant offered to show, in addition, that he understood that he signed "only in his fiduciary capacity as assignee." This was rejected. Rulings also were asked and refused that the defendant was not liable without notice of dishonor, and that the statute of limitations had run in his favor. The court directed a verdict for the plaintiff, and the case is here on exceptions.

The ruling of the court was right. The consideration was sufficient if the defendant's promise was offered in consideration of the company's assenting to the transfer and the company thereupon did the stipulated act, or if, as seems more probable from the papers, the company assented upon condition that the defendant would indorse the note, and thereupon the defendant indorsed it. Bank v. Watkins, 154 Mass. 385, 387, 388, 28 N.E. 275.

It does not appear that the defendant did not receive notice of dishonor. But Pub.St. c. 77, § 15, does not refer to a collateral contract made subsequent to the issuing of a note, and upon an independent consideration, even if it happens to be indorsed upon the note, instead of being written on a separate piece of paper.

The note was payable "two months after risk ends." The risk ended on June 17, 1890, and the writ was dated April 22, 1896. Therefore the statute of limitations had not run. The defendant refers to a provision in the policy authorizing the plaintiff to cancel it in case of insolvency, such as happened. But the plaintiff, instead of electing to cancel it, chose to assent to its transfer, as we have said.

The defendant's evidence was...