Marks v. Hope Mutual Life Insurance

117 Mass. 528, 1875 Mass. LEXIS 282

• Court: Massachusetts Supreme Judicial Court
• Decided: May 8, 1875
• Status: Published

Opinion

Wells, J.

Under the ruling at the trial, the verdict must rest exclusively upon the written memorandum declared on as the contract of the defendant corporation.

Assuming that the corporation could contract to insure otherwise than by a policy in the usual form and payment of the-premium, and that Simpson had full authority so to contract, and also that this writing was intended to bind the corporation and not Simpson personally, we are unable to give to the writing any effect except as an agreement to return the money received unless a policy should be issued and furnished to the plaintiff within thirty days.

It cannot operate as a present insurance for thirty days, or until a policy should be furnished, because that is not its purport. And if such a contract could be made out by proof of oral agreements and representations, adding to and varying the written memorandum, it would be a different contract from that declared on. It is not an absolute agreement to insure, or to make and deliver a policy. Its obligation would be satisfied at any time by declining the application and returning the money received. Reading the writing as if made and signed by the corporation itself, it disclaims the assumption of any liability by. way of insurance otherwise than by a policy duly issued to the party applying.

We are of opinion that the ruling which allowed the action to be maintained was wrong, and that the verdict must be set aside. Exceptions sustained.