Motley v. Manufacturers' Insurance , 29 Me. 337 ( 1849 )

,, Howard,- J.

This is án action of assumpsit oñ a policy of insurance, not under seal. By the statement of facts, if appears that N. Ryerson mortgaged to the plaintiff,-Sépténiber 24, 1846, a tavern stand, and lot upon which the, buildings and property insured, stood, to secure the payment oí, three thous- and dollars ; that there is still due upon the mortgage more than the amount of the loss proved or claimed ; and that the mortgager leased the premises to S. Ryerson and L. Stowell., October 22, 1846, jointly, for five years ; the lessees stipulating- to pay a fixed amount annually, and perform certain acts,, ap'd- extend certain privileges to the lessor, and the different members of his family, as rent; and, among other things, stipulating “ to keep the premises fully insured,” and reserving a right,to make additions and improvements.

The mortgager and his lessees continued in possession pf the premises. The former died Nov. 22, 1846.

The policy, covering the dwellinghouse, furniture, and stable, was executed Nov. 10, 1847, upon the application of the lessees; they being in possession, and occupying the premises, and paying the premium. S. Ryerson & Stowell had no other interest in the property than as lessees, and as heirs with several others, of N. Ryerson.

The policy describes the property, as occupied by Ryerson & Stowell, as a tavern stand, and contains the following stipulation, “ and in case of loss on the buildings, the same to be paid to Edward Motley, mortgagee.”

The dwellinghouse and other property, were consumed by fire, August 10, 1848, while the lessees were occupying, as be-forementioned, under their lease.

It was admitted that the value of the dwellinghouse was $2500, the amount for which it was insured ; that the stable was damaged to the amount of $50 ; and that the real estate, after the fire, was sufficient security for the debt.

The principal question raised by the parties is, whether the plaintiff can maintain an action upon the policy in his own name. No suggestion was made, that the true interest of the assured, and of all parties, was not stated to the company ; or that any matter was concealed, which might influence the defendants in making the contract.

The mortgager and mortgagee have an insurable interest in the property ; and every person having, bona fide, an interest in property, though without any title to it, may protect such interest by assurance. 1 Phillips on Ins. 2d ed. 105, 6, 7, 131, 2; Locke v. North American Ins. Co. 13 Mass. 67; Higginson v. Dall, 13 Mass. 101; Bartlett & al. v. Walter & al. 13 Mass. 267; Columbian Ins. Co. v. Lawrence, 2 Peters, 25; Tyler v. Etna Ins. Co. 12 Wend. 507; Cromley v. Cohen, 3 B. & Adolph. 478; 1 Burr. 495; 8 Term Rep. 154; 2 East, 544; 11 East, 619; 14 East, 522.

The lessees in this case, occupying the property under a lease for five years, to transact their business as innholders, and under a special covenant to keep the same fully insured, had an insurable interest in such property. But their interest was subordinate to the plaintiff’s rights as mortgagee; and they appear to have procured the contract of assurance in good faith, for his benefit, as well as for their own security.

It is sound doctrine, applicable to simple contracts generally, and the appropriate, and well established doctrine of contracts of insurance, that if one make a promise to another, for the benefit of a third, the latter can maintain an action upon it in his own name. 1 Chitty’s Pleadings, 4, 5; 3 Bos. & Pul. 149, note; 2 Phillips on Ins. 593, 595; Schemerhorn v. Vanderheyden, 1 Johns. 139; Pacific Ins. Co. v. Catlett & al. 4 Wend. 75; Felton v. Dickinson, 10 Mass. 287. Bringing this action is a sufficient ratification, by the plaintiff, of the acts of the lessees, in procuring the insurance for his benefit.

A mortgagee is entitled to recover the full amount of the insurance in case of a loss, if such sum does not exceed the amount due, and secured by the mortgage. Finney & als. v. Fairhaven Ins. Co. 5 Metc. 192; 1 Phillips on Ins. 286, 7, 8; Strong v. Manuf. Ins. Co. 10 Pick. 40; Etna Ins. Co. v. Tyler, 16 Wend. 385; Carpenter v. The Prov. Wash. Ins. Co. 16 Peters, 495.

Upon these principles the plaintiff is entitled to recover, and by agreement of parties, the defendants are to be defaulted.

Judgment is to be rendered for the plaintiff, for the amount insured upon the dwellinghouse, and the damage to the stable, with interest from the time when the loss was payable, by the terms of the policy.