Pettengill v. Hinks

75 Mass. 169

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Merrick, J.

It is conceded by the plaintiff, that after the occurrence of the injury by fire to the insured property, no such notice as is made requisite by the provisions of the policies to render them liable for the-loss was ever given to either of the corporations who are summoned as trustees; and that they are therefore entitled to be discharged, unless by the acts and proceedings of their officers their right to such notice was virtually waived. Such provisions respecting the notification of a loss were undoubtedly for the benefit of the insurers, who could, of course, if they should see fit to do so, dispense with its being given. And they may waive it in express terms, or it may be assumed as a fact if it is a result by necessary implication from their acts or the acts and conduct of their officers. Clark v. New England Mutual Fire Ins. Co. 6 Cush. 342. Underhill v. Agawam Mutual Fire Ins. Co. 6 Cush. 440. But the difficulty with the plaintiff’s case is that there has been no waiver; and no transactions from which, in connection with the proofs by which they are surrounded, a fact of that kind can legitimately be inferred. The answers of the trustees are to be taken to be true; and both corporations in their answers expressly declare that they never waived or intended to waive the benefit, secured to them by the provisions in the policies which they issued, con. cerning the notice to be given them by the insured in case of loss. There is some apparent, and perhaps real, conflict in the testimony of the witnesses, which has been put into the case by the parties in addition to the answers of the trustees; but, fully considered, it is certainly impossible to conclude from this testimony, contrary to the statements of the trustees as made in their answers, that they did in fact dispense with the requirement of the notice provided for. And as the requisite notice was in fact never given, and is not affirmatively shown to have been waived, it follows that no action could have been maintained against the insurers to recover the amount of the loss; and consequently that they cannot be adjudged to have had any goods, effects or credits of the defendants in their hands when the plaintiff’s writ was served upon them.

Trustees discharged.