Bostwick v. Bass , 99 Mass. 469 ( 1868 )

Chapman, C. J.

The trustees answer generally that, according to their best information and belief, they have not any goods, effects or credits of the defendant in their hands or possession. On being further interrogated, they admit that they issued a policy of insurance on the defendant’s stock of goods in a country store, and that they have been notified of the destruction of the property by fire; but they say they are informed and verily believe that there was a misrepresentation on the part of the defendant in obtaining the insurance, sufficient to invalidate the policy, which was, that the store in which the goods were was detached, whereas in fact there was another store adjoining which very materially affected the risk. There is no doubt that such a misrepresentation is material, and invalidates a policy; and upon this state of facts the trustees are entitled to be discharged

The statements of trustees in their answers are to be considered as true in deciding how far they are chargeable; and the additional facts which the plaintiff may allege and prove must be other facts not stated or denied in their answers. Gen. Sts. c. 142, § 11. The plaintiff alleged and offered to prove: 1, that the insurance was not effected upon a detached building; 2, that there was no other building, adjoining the one containing the goods destroyed and covered by the policy, which materially affected the risk. The terms of the first allegation are immaterial, because the insurance was not upon the building. But, assuming that the error is verbal merely, yet neither of the allegations relates to facts not stated or denied in the answer. Each of them contradicts statements in the answer which the trustees say that they are informed and verily believe to be true. These averments are therefore immaterial; because, notwithstanding them and any evidence which may be offered to sustain them, the court are required by the statute to consider the statements of the trustees as true.

It is not material to consider the other questions that have been argued. Exceptions overruled.