Potter v. Monmouth Mutual Fire Insurance , 63 Me. 440 ( 1873 )

Virgin, J.

Assumpsit on a policy of fire insurance in the sum of fourteen hundred and fifty dollars, for four years from September 18,1867. The writ is dated November 15, 1870. The property insured was totally destroyed by fire on September 1, 1869.

In addition to the general issue, the defendants pleaded by way of brief statement that on October 15,1869, the plaintiff agreed in writing to accept one thousand dollars in thirty days in full satisfaction for the loss of his property covered by the policy in suit, which they then agreed to pay and did pay within the time specified ; and that the plaintiff accepted the same in full discharge and satisfaction thereof.

The plaintiff introduced testimony tending to prove that he was induced to sign the agreement and accept the money by the fraudulent misrepresentations of the defendants; that he was deceived thereby; and that he should not otherwise have made the agreement or received the money. The defendants denied all fraudulent practices in the premises.

The verdict was for the plaintiff for the balance; and the only ground on which it can be based, under the instructions given, is that the jury must have found the defendants guilty of the fraud imputed to them by the plaintiff’s testimony. Hence the first request by the defendants became material; and the presiding justice erred in not giving to the jury the law upon the subject of rescission.

The contract of insurance and that of accord and satisfaction could not contemporaneously exist and be in force ; for the latter if bona fide would operate as a cancellation of the former. JB. S., of 1857, c. 82, § 44. If not bona fide but voidable for fraud of the defendants, the plaintiff, by seasonably rescinding, it, but not otherwise, might then bring the action which he has brought, upon the policy. But he could rescind only by paying back or tendering the one thousand dollars. Bisbee v. Ham, 47 Maine, 543, is precisely in point. Exceptions sustained.

Appleton, C. J. Cutting, Dickerson, Barrows and Daneorth, JJ\, concurred.