Oakes v. Manufacturers' Fire & Marine Insurance Company

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Holmes, J.
• Citation: Oakes v. Manufacturers' Fire & Marine Insurance Company, 135 Mass. 248 (Mass. 1883)
• Decision Date: 27 June 1883
• Parties: Charles T. Oakes v. Manufacturers' Fire & Marine Insurance Company

135 Mass. 248

Charles T. Oakes v. Manufacturers' Fire & Marine Insurance Company

Supreme Court of Massachusetts

June 27, 1883

Suffolk.

Exceptions sustained.

P West, (J. F. Andrew with him,) for the plaintiff.

E. W Hutchins & H. Wheeler, for the defendant.

Holmes J. Field & W. Allen JJ., absent.

OPINION

Holmes, J.

This is an action upon a policy of insurance conditioned to be void if the property should be "sold or conveyed in whole or in part." The plaintiff subsequently conveyed through a third person to his wife, and the answer sets up the conveyance as a breach of condition. It has already been decided that the condition was broken by the conveyance. Oakes v. Manufacturers' Ins. Co. 131 Mass. 164. But at a second trial the plaintiff offered to prove that he went to the office of the defendant company, and orally notified it of the conveyance and of a mortgage, which was made before the policy and was still outstanding, and requested the defendant to cure the defect in the policy caused by the conveyance, and handed the policy to the defendant for that purpose; and that, at that time, and upon said request, the defendant made the following indorsement on the policy: "Boston, Aug. 29, 1877. Pay the within insurance of Sixteen Hundred Dollars on House in case of loss to the Andover Savings Bank. Chas. T. Oakes. Assented to Aug. 30, 1877. Jas. J. Goodrich, Secretary." That said policy was then redelivered by the defendant to the plaintiff, and no return of premium, or any portion thereof, was made. The court excluded the evidence, and directed a verdict for the defendant.

The plaintiff's insurable interest is admitted, and the defendant supports this ruling and direction on the single ground that the plaintiff's offer was an attempt to modify and enlarge the effect of the written indorsement by evidence of contemporaneous oral dealings, and to import into it, or establish alongside of it, a larger scope or transaction than can be gathered from its words. No other question is raised.

In the opinion of the court, the evidence was admissible. To begin at a little distance from the ground of the chief contention, the highest authorities have declared that the condition against alienation does not take away the defendant's power to waive a breach and to continue the insurance in force, and that a new consideration is not necessary for this purpose. Titus v. Glens Falls Ins. Co. 81 N.Y. 410, 419. Wheeler v. Watertown Ins. Co. 131 Mass. 1, 8. Insurance Co. v. Norton, 96 U.S. 234. A condition subsequent can rarely be meant to deprive the party for whose benefit it is inserted of his choice in this respect. Hence a contract which is subject to such a condition is usually construed to provide by its own terms that it shall remain in force after a breach, unless by some overt act the contractor shall manifest his election to avoid it, or if by some overt act he shall manifest his election to affirm it, as the case may be. It follows that, if he elects to remain bound, he remains so by force of the original contract, and on the original consideration.

It might be said that this reasoning applies to a condition subsequent, strictly so called, which goes to the whole contract, and which, if insisted on, avoids it ab initio, but that the proviso in this case only limits the scope of the promise and the extent of the risk assumed. And then it might be argued further, that the scope of a promise cannot be enlarged without a new consideration. The answer is, that, even taking it that way, by the same settled construction that reads "void" as "voidable," the limitation of the promise is itself conditional, and that the original promise is to insure throughout the term, in spite of an alienation, in...