Whitten v. New England Live-stock Ins. Co.

• Decision Date: 28 February 1896
• Citation: 165 Mass. 343,43 N.E. 121
• Parties: WHITTEN v. NEW ENGLAND LIVESTOCK INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 343

43 N.E. 121

WHITTEN v. NEW ENGLAND LIVESTOCK INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1896

COUNSEL

William H. Baker, for plaintiff.

John Haskell Butler and Melville P. Beckett, for defendant.

OPINION

ALLEN J.

The action was brought in less than 60 days after the death of the horse. The only question before us is whether it could be ruled, as matter of law, that it was brought prematurely. If not, according to the report, the plaintiff is to have judgment. By the policy the defendant agreed, upon receiving satisfactory proofs of the death of the said animal, to pay $200 "in 60 days after the approval of the claim by its executive board." The plaintiff introduced evidence tending to show a waiver of the production of proofs of death, and a general denial of liability by the defendant's general manager on other grounds. We must assume that the jury might have found both of these facts to be proved. The parties could not have intended, by the form of policy, to give to the defendant the power to avoid payment altogether, by refusing to have its executive board act. Page v. Cook, 164 Mass. 116, 41 N.E. 115; Braunstein v. Insurance Co., 1 Best & S. 782. Some other construction must therefore be given to the words used. It is apparent that the postponement of payment for 60 days is allowed solely for the benefit of the defendant, and it is reasonable to limit the clause to cases where the claim is approved by the executive board. The time of payment is separable from the promise to pay. If the executive board disallows a claim, or refuses to act at all, a claim under a policy is not thereby defeated. Moreover, if a promise is made to pay money when something else happens, and the promisor interposes to prevent that thing from happening, he cannot avail himself of the stipulation. Beharrell v. Quimby, 162 Mass. 571, 39 N.E. 407, and cases cited. The practical effect is to strike out that condition or clause from the contract. The 60-day clause being thus struck out from this policy, the defendant was bound to pay upon receiving satisfactory proofs of death and the production of such proofs was waived. Therefore there was a present obligation to pay, and a right of action accrued at once. The defendant chiefly relies on Daniels v. Newton, 114 Mass. 530. In that case there was a mutual executory contract to be performed by both parties at a future day...