Lawlor v. Dowd

130 N.E. 103, 237 Mass. 569, 1921 Mass. LEXIS 924

• Court: Massachusetts Supreme Judicial Court
• Decided: March 3, 1921
• Status: Published

Opinion

Pierce, J.

This is an action of tort, in three counts, to recover damages for the conversion of certain household furniture. The trial judge ordered a verdict for the defendant on the first count, and the case proceeded to trial on the remaining counts. On both counts the same evidence was offered in proof of the alleged conversion, and in substance was as follows:

On March 21,1919, the plaintiff purchased of the defendant the household furniture in question for $1,000. She paid $500 in cash and gave the defendant a mortgage note for the balance. The mortgage contained the following covenant regarding insurance: “ . . . and until such payment shall keep the said goods and chattels insured against fire in a sum not less than One Thousand Dollars for the benefit of the grantee and his executors, administrators .and assigns, in such form and in such Insurance Companies as they shall approve.” For an alleged breach of the above covenant, the mortgagee gave the plaintiff proper and seasonable notice of his intention to foreclose the mortgage. He also gave the mortgagor proper and seasonable notice of the time and place of sale; and the foreclosure sale was duly held on May 26, 1919, by a duly licensed auctioneer. “No question was raised . . . regarding the validity of the formal procedure as far as notices of the foreclosure sale were concerned.” At the trial the plaintiff testified “she had never given Mr. Dowd, the defendant, any policy of fire insurance on the furniture covered by the mortgage.”

The evidence supports the contention of the plaintiff that the plaintiff and the defendant agreed when the mortgage was executed that one Martin, who acted for them in drafting the papers, should apply for an insurance policy of $1,000, and that Martin did so apply. Upon the application no policy ever issued. Martin testified that he applied for insurance on March 21, 1919; that he had called upon the insurance company by telephone two or three times before May 26, 1919, and had received the reply “that they were attending to it and would look into it and see why' the policy was not sent.” The plaintiff contends there had been no breach of the covenant when the mortgage was foreclosed because Martin had placed an oral insurance upon the property pending the issuance of the policy. There is no evidence in support of the claim that any insurance company ever was asked or agreed to insure the property, "cover it,” until a policy was tendered or delivered to the mortgagee for-his approval and acceptance; and the testimony of Martin that “whenever we apply for a policy, it is always covered by the insurance company until a policy is delivered. Therefore it was covered on March 21,1919,” is not a statement of fact and is no more than a declaration of his opinion, which cannot avail as proof sufficient to establish that Martin had in fact procured a temporary oral contract of insurance with some insurance company, in the face of the undisputed evidence to the contrary. The facts are not in dispute, and the questions, whether the- mortgagor had procured insurance upon the furniture in accordance with the covenant within a reasonable time, and whether he had acted with due diligence in this regard were not questions of fact for the jury, but of law for the court. McQuaid v. Ætna, Ins. Co. 226 Mass. 281. Mowles v. Boston Ins. Co. 226 Mass. 426. As matter of law, we think the plaintiff did not exercise due diligence in procuring the insurance, that it was not procured within a reasonable time after the making of the covenant, and that the defendant was entitled to his requested ruling “That there was a breach of condition of the mortgage.”

Exceptions sustained.