Fitchburg Savings Bank v. Amazon Insurance

125 Mass. 431, 1878 Mass. LEXIS 95

• Court: Massachusetts Supreme Judicial Court
• Decided: October 7, 1878
• Status: Published

Opinion

Gray, C. J.

The policy in suit is on the interest of Coolidge 011I3, and the plaintiff is merely the payee of the policy, and not fas in the case of Foster v. Equitable Ins. Co. 2 Gray, 216, on which the plaintiff relies,) the assignee thereof in such form as to constitute a new contract between the assignee and the insurer by which the assignee becomes the assured. Coolidge being the only party insured, and his interest being subject to a mortgage to Kendall, which was not stated in the policy, the policy, by virtue of the provision upon its face, is void, and neither Coolidge nor the plaintiff can maintain an action thereon. Franklin Savings Institution v. Central Ins. Co. 119 Mass. 240. Smith v. Union Ins. Co. 120 Mass. 90.

The paroi evidence introduced was incompetent in law to vary the contract between the parties, and did not in fact tend to show any fraud, or that the defendant’s agent knew of the mortgage to Kendall, or undertook to insure any interest but that of Coolidge. Exceptions sustained.