Welles v. Boston Insurance

23 Mass. 182

• Court: Massachusetts Supreme Judicial Court
• Decided: March 25, 1828
• Status: Published

Opinion

Per Curiam.

The defendants refuse to pay the whole of the loss on the blankets, on the ground that they were not included in the policy ; offering however to contribute in proportion to the interest which the parties respectively had at risk. The plaintiffs refuse to accept less than the whole, because they say that the blankets were part of their stock in trade. But there seems to be no foundation for this pretension.

The plaintiffs can claim then only on the ground of a sacrifice made by them for the preservation of the property endan gered by the fire, and for a proportion of which sacrifice they are equitably if not legally entitled to recover. They contend however that this is not a case proper for contribution, it being customary on fire policies to pay the whole loss. We believe the practice to be as stated, but as the present claim is not within the contract, it certainly is reasonable th die plaintiffs should bear a proportion of the sacrifice made 1 the common benefit. This decision does not call in question the general principle, that a loss under a policy against fire is to be paid without contribution.

But it is said that the plaintiffs and the defendants are not the only parties who ought to contribute, since all the property in the neighbourhood, on some of which the defendants had underwritten, was protected by the expenses in question. But it will not do to take so wide a range in the application of the principle of contribution. All the buildings in the city may remotely have been protected, and it would be impossible to draw the line. It is necessary therefore to limit the contribution to the building, and the property therein, immediately saved- The money brought into court is sufficient to cover the defendants’ proportion of the expenses, and the plaintiffs must be nonsuited.¹