Hill v. Commercial Union Assurance Co.

41 N.E. 657, 164 Mass. 406, 1895 Mass. LEXIS 254

• Court: Massachusetts Supreme Judicial Court
• Decided: October 17, 1895
• Status: Published

Opinion

Allen, J.

The risk was increased under circumstances which would avoid the policy unless this defence is cut off by the acts of the defendant’s agents. The agents had authority to grant permits for vacancies, and also for repairs, by attaching written or printed permits to policies and sending copies thereof to the defendant. They had already granted such a permit for allowing the building to remain unoccupied; and one of them had said to the plaintiff, “ When the mechanics begin work we will put on [to the policy] a mechanic’s permit.” But it was never in fact done, and the agents had not been informed and did not know that the mechanics had begun work. There is nothing to show that the agents had authority to bind the defendant by an oral agreement to grant a permit; Parker v. Rochester German Ins. Co. 162 Mass. 479, and cases cited; and moreover their promise as made implied that notice should be given to them before the permit should be attached to the policy. It was no present permit, and no agreement for a future permit, unless upon further notice. The fact that the defendant’s agents, who were also agents of the plaintiff in respect to caring for and leasing the property, had the policy in their hands, is immaterial.

The plaintiff contends that adding the permit for repairs to the permit for vacancy would not change the grade of risk, and that the permit for vacancy therefore includes the permit for repairs, and that the assent of the defendant thereto is to be presumed. According to this argument, the plaintiff, on getting leave to do one of the things provided against in the policy, might do all the rest without permission. That cannot be.

The unaccepted offer of compromise creates no estoppel, and shows no waiver on the part of the defendant.

Judgment for the defendant.