Heaphy v. Kimball

• Decision Date: 26 March 1936
• Citation: 293 Mass. 414,200 N.E. 551
• Parties: HEAPHY v. KIMBALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 414

200 N.E. 551

HEAPHY

v.KIMBALL.

Supreme Judicial Court of Massachusetts, Berkshire.

March 26, 1936.

Exceptions from Superior Court, Berkshire County; Donahue, Judge.

Action of contract in the superior court by William A. Heaphy against Ernest L. Kimball. From an order by the trial judge denying the plaintiff's motion for judgment upon an auditor's report and that judgment be entered for the defendant, the plaintiff brings exceptions.

Exceptions overruled.

W. A. Heaphy, of Pittsfield, for plaintiff.

F. H. Wright, of Great Barrington, for defendant.

RUGG, Chief Justice.

This is an action of contract in which the original plaintiff, one Race, sought to recover the value of hay destroyed by fire by reason of the alleged failure of the original defendant, one Frein, to procure fire insurance on the hay. Both the original parties have died and the case is being prosecuted by the executors of the original plaintiff and defended by the administrator of the original defendant. For convenience reference will be made to the original parties as the plaintiff and defendant. The declaration alleges an agreement between the parties whereby the defendant on May 8, 1928, agreed to extend insurance of $2,000 on the hay (among other items not now in issue) and failure on the part of the defendant to perform the contract. The case was referred to an auditor, whose findings of fact were to be final. Thus it appears that for many years prior to January 28, 1928, the plaintiff procured considerable fire insurance covering a variety of properties through the defendant or his firm. Their relations had been on the footing of mutual confidence, respect and friendship. The plaintiff had owned a farm. On January 10, 1928, the plaintiff told the defendant that he had arranged to sell his farm; he requested the defendant to cancel the insurance on his personal property at the farm and instructed him to procure new and separate policy or policies of insurance in a total of $4,000 for four months, $2,000 being on the hay; the other items are not involved in this action. The defendant advised a different course and told the plaintiff it was not as easy to insure property for a tenant as for an owner, and that it was difficult to secure insurance on personal property in farm buildings insured by other companies. The plaintiff insisted on having separate insurance placed on his personal property and paid the defendant the premiums for all the desired insurance. The defendant represented about twenty-five insurance companies and as agent had authority to bind risks and effect fire insurance, subject in all cases to final acceptance or rejection by the insurance company, coverage on risks in such instances to be valid until rejection. The defendant, in 1928, as the plaintiff knew, was not in business as an insurer or, in the absence of special agreement, as an indemnitor of those applying to him to have insurance effected. During the four months subsequent to January 10, 1928, the defendant bound the insurance desired by the plaintiff with a great many different fire insurance companies, but was not able to get any company to accept the risk and issue a policy. As no company would accept the risk at any time during this period, the defendant did not expend the money advanced by the plaintiff to pay the premiums. The defendant did not inform the plaintiff of his inability to obtain acceptance of the risk. On May 8, 1928, the plaintiff told the defendant that he had been unable to move the hay, instructed the defendant to renew the policies or to procure for him fire insurance on the hay in the amount of $2,000, and paid him the amount of the premiums. Again, as before the defendant told the plaintiff it would be difficult to write the desired insurance. On May 18, 1928, the defendant finally caused to be written a policy on the hay in the sum of $1,000 in the National Union Fire Insurance Company. Between May 8 and May 22, 1928, the defendant did not inform the plaintiff that he had not procured the amount of insurance desired and the plaintiff supposed his property was covered and relied on the defendant to do it. On May 22, 1928, the hay, having a fair market value of $1,687.50, was entirely destroyed by fire. The plaintiff made no request before the fire for the delivery of any policy to him. The defendant had never in the past delivered fire insurance policies to the plaintiff because the properties were mortgaged and the policies were left with the mortgagees. He could have delivered to the plaintiff the policy in the National Union Fire Insurance Company for $1,000, but did not do so until about three weeks after the fire. Later, the plaintiff asked the defendant to make a claim for him under the policy. This the defendant did although that was not his custom. At no time did the plaintiffmake comment or objection as to the terms or amount of this policy. Subsequently, the plaintiff settled this policy with an adjuster of the insurance company for ten dollars. The defendant took no part in inducing the plaintiff to make this settlement. The only consideration received by the defendant from the plaintiff...