Washington Mills Emery Mfg. Co. v. Weymouth & Braintree Mut. Fire Ins. Co.

• Decision Date: 08 September 1883
• Citation: 135 Mass. 503
• Parties: Washington Mills Emery Manufacturing Company v. Weymouth and Braintree Mutual Fire Insurance Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 503

Washington Mills Emery Manufacturing Company v. Weymouth and Braintree Mutual Fire Insurance Company

Supreme Court of Massachusetts

September 8, 1883

Argued November 14, 1882; November 15, 1882

Norfolk. Contract upon a policy of insurance for $ 2400, against loss by fire, issued by the defendant company, dated February 5 1878, for the term of one year, upon a frame building in Ashland, which was totally destroyed by fire on August 17 1878. At the trial in the Superior Court, before Putnam, J the only evidence put in by either side was the report of an auditor. The judge declined to give certain rulings requested by the defendant; ordered a verdict for the plaintiff in the sum of $ 2400; and reported the case for the determination of this court. The facts and rulings requested appear in the opinion.

The case was argued at the bar in November, 1882; and was afterwards considered on briefs by all the justices.

Judgment on the verdict.

J. P Treadwell, for the defendant.

S. Lincoln, for the plaintiff.

OPINION

Morton, C. J.

1. Upon the facts found by the auditor, it is admitted that, at the time the insurance was effected, and at the time of the loss, the plaintiff had an insurable interest in the property covered by the policy. The extent and value of that interest are in controversy. The plaintiff, being the owner of the buildings and of the land on which they stood, made a deed of the land to the city of Boston, dated November 20, 1877, which contained the following clause: "The grantor corporation excepts and reserves to itself all of the buildings and structures standing on the granted lands, with all machinery and fixtures; provided however that the same shall be removed from the granted premises by the grantor corporation, at its sole expense, before the first day of October next, and if not so removed the grantor forfeits all right thereto, and the same shall thenceforth be the absolute property of said city." There can be no reasonable doubt that the intention of the parties was that the buildings should remain the property of the grantor, with the right to remove and dispose of them at any time before the first day of October. The law presents no obstacle to the carrying this intention into effect. It is not material whether the clause operates technically as an exception, or as an agreement detaching the buildings from the realty and making them personal property, which was to belong to, and be at the disposal of, the grantor. The buildings were not conveyed to the city, but remained the property of the plaintiff. It is not necessary to consider what would have been the rights of the parties after October 1, 1878, as the buildings were burned before that time.

The Superior Court rightly refused the first and second requests for instructions made by the defendant. ^[*]

."

2. The plaintiff had held a previous policy issued by the defendant at the time the plaintiff owned the land as well as the buildings; and the defendant asked the court to rule that the plaintiff could not recover, because he did not disclose the change of title at the time of procuring the policy in suit. The court rightly refused this ruling.

The facts found by the auditor, being uncontrolled, are to be taken as true. He has found that no fraud was committed or attempted by the plaintiff or any of its agents. The plaintiff made no misrepresentations and no concealment as to its title. The policy is upon the buildings. The defendant saw fit to issue this policy without any specific inquiries of the plaintiff as to the title to the land, and without any representations by the plaintiff upon this point. It was its own carelessness, and it cannot avoid the policy without proving intentional misrepresentation or concealment on the part of the plaintiff. An innocent failure to communicate facts about which the plaintiff was not asked will not have this effect. Commonwealth v. Hide & Leather Ins. Co. 112 Mass. 136. Fowle v. Springfield Ins. Co. 122 Mass. 191. Walsh v. Philadelphia Fire Association, 127 Mass. 383.

3. The defendant asked the court to rule that, on the facts found, no contract ever existed between the plaintiff and the defendant, or, if it existed, was avoided because the minds of the parties never met, and the risk undertaken was unknown to, or misunderstood by, the defendant. The court could not properly give this ruling. The parties entered into a written contract, clear and unambiguous in its terms. The minds of the parties did meet upon these terms. The fact that the defendant neglected to obtain full information as to the situation of the subject matter of the contract, or of the extent and character of the risk, cannot, in the absence of fraud or imposition, avoid the contract.

4. The other rulings requested relate to the question of damages.

The auditor adopted as the rule of damages, that the plaintiff is entitled to recover the actual intrinsic cash value of the property destroyed, and to such a sum as it would have cost at the time of the fire to have replaced and restored the property to the...