Dodd v. Jones , 1884 Mass. LEXIS 260 ( 1884 )

W. Allen, J.

The defendant sold a house to the plaintiff, and agreed to assign to her a policy of insurance which he held upon it. He did not assign it, although several times requested by the plaintiff, but promised to do so, and gave some excuse for not having done it. The plaintiff procured no insurance upon the house. Nearly six months after the conveyance of the house to the plaintiff, and about three weeks after the last demand upon the defendant for an assignment, the house was injured by fire.

The plaintiff declares in contract upon the agreement to assign the policy, alleging that it became void by reason of the neglect of the defendant to perform his agreement, and that the plaintiff was deprived of the benefit of the insurance; and seeks to recover the amount that might have been recovered upon the policy for the loss by fire. At the trial, the court held that the plaintiff could not recover for damages resulting from the burning of the house, nor for other damages than the cost of procuring insurance for the unexpired term of the policy. The instructions given were clearly 'correct.

The agreement was not a contract of insurance, but of sale ; and the measure of damages for the breach of it was the value of the thing sold. A sum that would procure a similar policy, and thus place the plaintiff in the position she would have been in had there been no breach of the contract, would indemnify her, and she cannot elect to go without insurance, and hold the defendant as insurer. Damages resulting from the burning of the building are not the direct and natural consequence of the breach of the defendant’s contract, and could not have been contemplated by the parties as included in it. The natural consequence of the failure of the defendant to perform his contract would be that the plaintiff would procure another policy of insurance, and she cannot charge the defendant with the consequences of her neglect to do that. Loker v. Damon, 17 Pick. 284. Miller v. Mariner's Church, 7 Greenl. 51. Grindle v. Eastern Express Co. 67 Me. 317. Boadley v. Northern Transportation Co. 115 Mass. 304. Exceptions overruled.

A. L. Murray & D. E. Kimball, for the plaintiff. E. C. Gilman, for the defendant.