Sias v. Roger Williams Ins. Co.

• Decision Date: 29 June 1880
• Citation: 8 F. 187
• Parties: SIAS v. ROGER WILLIAMS INS. CO.
• Court: U.S. District Court — District of New Hampshire

8 F. 187

SIAS v. ROGER WILLIAMS INS. CO.

United States Circuit Court, D. New Hampshire.

June 29, 1880

S. C Eastman, of Concord, for defendant.

W. J Copeland, of Great Falls, for plaintiff.

LOWELL C.J.

This case has been thoroughly argued, and all the authorities which I shall refer to have been cited by counsel.

The first point taken by the plaintiff is that the construction of the policy is to be governed by the laws of New Hampshire, which is true in a certain sense; and it may be that the statutes of New Hampshire will give some assistance to the plaintiff in case of a new trial. But the decisions of the courts of New Hampshire, excepting upon points arising under a statute are not binding authorities in the courts of the United States in ascertaining the meaning and effect of a contract of insurance. Carpenter v. Providence Ins. Co. 16 Pet. 501. I do not understand that this point is of any special importance in this case. In so far as the right to maintain action at common law is concerned, the law of New Hampshire will govern, and that law, as I understand it, permits an action by the mortgagee when he has paid the premium. Chamberlain v. N.H. Ins. Co. 55 N.H. 249. The law of this country has been settled, with little or not difference of opinion, so far as I know, that when the interest of an owner of an equity of redemption is insured, and the loss is made payable to the mortgagee by the terms of the policy or by an assignment of the policy, an equitable right is maintained, which is subject to be defeated by his acts in contravention of its conditions. It is enough to cite decisions which must control my own. Bates v. Equitable Ins. Co. 3 Cliff. 215; 10 Wall. 33; Johnson v. North British Co. 1 Holmes, 110, 111, per Shepley, J.

The phrase, 'as his interest may appear,' does not affect this question. It means that the company will pay the mortgagee to the extent of his lien or charge upon the premises. Franklin Sav. Ins. v. Cent. Mut. Co. 119 Mass. 240; Foote v. Hartford Fire Ins. Co. Id. 259.

The fact that the mortgagee procured the policy and paid the premium without consulting the mortgagor, appears upon Judge Shepley's minutes. Whether the mortgagor gave authority for such action, or whether there was a subsequent ratification by the mortgagor, does not appear, and may be of importance hereafter in ascertaining the validity of the policy; but the construction of the contract clearly is that the mortgagor is the assured. Thus it is said that the house is occupied by the assured, meaning the mortgagor. This being so, a court cannot hold that the effect or construction of the policy is varied by the extrinsic circumstance that it was procured by the mortgagee. Not only is it inadmissible to change the contract by parol, but there is no reason to suppose that the parties intended to make any other contract than that which they entered into, or that the company would have agreed to...