Richardson v. Suffolk Insurance , 44 Mass. 573 ( 1842 )

Dewey, J.

The plaintiff insists, that the defendants cannot raise the question of the interest either of Treat or Wilbur in this policy, as the parties have submitted all claims and demands under the same to arbitrators, by a written submission, in which the defendants admitted the interest of the parties, and under which the arbitrators made their award in favor of the plaintiff. »On the other hand, the defendants offer to show, by paroi evidence, that it was not their intention to admit that the insurance was effected for Wilbur, or was to enure to his benefit.

Upon recurring to the terms of the submission, it seems to us that they are very clear and explicit upon this point. The submission recites the nature of the claim, the form of the policy — as made for whom it concerns — and it distinctly admits the interest of the party for whom the insurance was effected. It also states that the assured claims for a total loss of the cargo and freight. And the parties agree to refer all claims and demands under the said policy to the arbitrament and award of the two persons therein named.

The defendants insist, in reference to the latter part of this agreement, that the submission of all claims under the policy dues not prevent the parties from showing that a particular claim or matter in controversy was not in fact brought forward or considered by the arbitrators : And various cases were cited to establish and illustrate this position. But however this might be, and whatever rule might apply to the case, if it stood alone upon the naked agreement to refer all claims and demands under the policy ; we are all clearly of opinion, that the admission by the defendants of the interest of the party, for whom the insurance was effected, must be taken to be a full waiver of all objections, on that point, to the right of the plaintiff to recover to the extent of the whole insurance, if he could satisfy the arbitrators that a loss to that extent had been sustained by the perils insured against, and under such circumstances as to charge the underwriters.

Such being the character of the submission, it was not competent for the defendants, at the trial before the jury, to introduce paroi evidence to show that they did not intend to admit that the insurance was effected for the benefit of Wilbur, or to show that the question, whether it was effected for him, was not passed upon by the arbitrators.

If this action had been on the policy, independent of the submission and award, the questions, for whom the insurance was effected; and who may claim under the description of persons “whom it concerns,” might have been open to the defendants. But as the case is rested by the plaintiff, as it properly may be, upon the submission and award, these questions are not open. The evidence, which was offered to show that insurance was effected for Treat alone, was therefore properly excluded.

Judgment on the verdict.