Tolman v. Manufacturers Insurance

55 Mass. 73

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1848
• Status: Published

Opinion

Forbes, J.

The view which the court take of this case makes it necessary to consider only the ruling first stated; because, if the order indorsed upon the policy ought not to receive the construction put upon it by the plaintiff, the action cannot be maintained. The plaintiff insists that it is an order for the payment of money absolutely; that it has no connection with the policy, except by way of reference to it, for the purpose of ascertaining the amount to be paid, and, having been accepted, is binding upon the defendants; that it does not in fact differ in any essential particular from a common order for money.

The stress of the argument for the plaintiff rests upon the import of the word “ pay,” as used in the indorsement. It is contended, that the word, in this connection, can imply nothing but an acquittal or discharge of the obligation in money, and that such is the meaning, force, and effect of the term in this and similar instruments. If this construction be correct, the defendants, having agreed to compensate the loss in money, may fairly be presumed to have waived their right to replace the building. But we are not satisfied that this construction is correct, or that the meaning of the term is restricted, in the manner supposed, by the jus et norma loquendi. An obligation to deliver merchandise is familiarly said to be paid by a delivery of the merchandise, and the use of the term, in this connection, is common, and strictly appropriate. Notes payable in goods or money, at the election of the promisor, are not of unfrequent occurrence. “ Pay the within ” to a third person, indorsed upon a note of this description, together with a delivery of the note, would operate as an assignment in equity, and if assented to by the promisor, might lay the foundation for an action in the name of the assignee. But this would not change the nature of the original promise ; the note would continue to he payable in goods or money, at the option of the maker. Yet, if the effect of the word “ pay ” be such as the plaintiff contends, the election of the promisor would be at an end, and the note must be paid in money.

“ To pay,” is defined by lexicographers, “ To discharge a debt, to deliver a creditor the value of a debt, either in money or in goods, to his acceptance or satisfaction, by which the obligation of the debt is discharged; to discharge a duty created by a promise, or by custom, or by the moral law ; to fulfil; to perform what is promised.” Webster’s Diet.

To pay, therefore, is to discharge an obligation by a performance according to its terms or requirements: if the obligation be for money, the payment is made in money; if for merchandise or labor, a delivery of the merchandise or a performance of the labor is payment; or if for the erection of a building, performance according to the terms of the contract is payment. The indorsement in this case is not, “ Pay the loss in money,” or even, “ Pay the amount of the loss,” but simply, “ Pay the loss.” We consider the effect of this indorsement to be the same as if written out more fully in this manner: “ Pay or discharge the obligation arising from the loss under the policy to, or for the benefit of, Joseph A. Tolman; ” in other words, that it operated as an assignment to the plaintiff of Kellen’s claim under the policy, without affecting, in the least, the right of the defendants to replace the building, or to pay the amount of the loss in money, at their election, according to the terms of the policy. The defendants having replaced the building, this action cannot be sustained.

It appears from the papers on file, that on the 12th of April, 1845, Kellen mortgaged the premises to the plaintiff, to secure the sum of five hundred dollars. The plaintiff, then, was a second mortgagee, and this fact discloses an inducement, on 'he part of the plaintiff, to obtain the control of the policy ; for if the defendants had paid Kellen the amount of the loss in money, the plaintiff, so far as appears, would have had no means of compelling him to expend it in the erection of another building; and to that extent the plaintiff’s security would have been impaired: whereas the assignment placed the plaintiff in a situation in which he must be benefited, whether the defendants erected another building or paid the amount of the loss in money.

The court are of opinion that the nonsuit must stand, and, according to the agreement of the parties, judgment is to he entered for the defendants.