Pendar v. American Mutual Insurance

66 Mass. 469

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1853
• Status: Published

Opinion

Bigelow, J.

The evidence offered by the plaintiff was clearly inadmissible, as tending to control by parol testimony the terms of the written contract. There being a prior insurance on the property, “not mentioned in or indorsed upon this policy,” it was, by express stipulation, “ void and of no effect.”

The agent had no power or authority to change or modify this clause in the contract of insurance; and even if he had, he did not do it, because the policy, as executed and delivered to the plaintiff, contained the stipulation in express terms. If the plaintiff did not see fit to accept of the contract, with this restriction upon his right to have other insurance on his property, he might have rejected it entirely, or he might have refused to accept it until the defendants had indorsed the prior insurance on, or mentioned it in the policy. But having accepted it without objection, he cannot be heard to say that he was ignorant of its terms, or that it was the fault of the defendants that the prior insurance was not duly entered on the policy. It does not vary the nature or effect of the evidence offered by the plaintiff, that the agent had entered a notice of the prior insurance in his memorandum book. The book was a private one. The entries in it did not bind, or in any way affect the defendants. They therefore had no efficacy by themselves as evidence, and could be proved only by the testimony of the agent. It was, therefore, still verbal evidence introduced to vary a written contract; and when the particular entry was proved, it did not advance the plaintiff’s case, because it left the stipulation in the contract as to prior insurance entirely unaffected, and in full force. See Barrett v. Union Mutual Fire Ins. Co. 7 Cush. 175. Nonsuit to stand.