Dudley v. Continental Insurance ( 1925 )

"The object of the stipulation in a policy of insurance against a sale of the property insured is apparent. It is obviously based upon the idea that the risk and hazard of loss may be increased by a change of ownership." Baldwin v. Insurance Co., 60 N.H. 422, 424. The provision prohibiting an assignment of the policy is based upon the same idea. Breeyear v. Insurance Co., 71 N.H. 445, 446.

By his deed and arrangement for support the insured parted with all proprietary interest in the premises, changing his position from that of owner with power to manage and control the property, to that of a mortgagee, whose only right was one of foreclosure for condition broken. The transaction was a sale and rendered the policy void according to its terms, unless there is evidence that the defendant waived compliance with those terms, or is estopped to deny it.

It should be remarked at the outset that the insured never in fact executed any regular assignment of the policy, and that the transfer of the property did not effect an assignment by operation of law. Baldwin v. Insurance Co., supra, 425; Lahiff v. Insurance Co., 60 N.H. 75; Cummings v. Insurance Co., 55 N.H. 457.

The fact has been established by a special finding that the defendant's agent received the letter addressed to Sawyer, but the evidence on which this finding was based has not been reported. If it is conceded that a request to an agent long since dead to assign a policy not then in force must have been understood by the defendant's agent as a request to assign the policy in suit, it must also be conceded that the mere failure to answer the letter containing that request would constitute neither a waiver nor an estoppel.

To create an estoppel by silence there must first be a duty to speak (Allen v. Shaw, 61 N.H. 95; Conway Bank v. Pease, 76 N.H. 319, 326), and whatever course business courtesy may have demanded, it is clear that the defendant was under no legal obligation to remind the insured that the policy was in his possession and that its assignment was an act which he himself must perform.

It is significant that the letter itself does not purport to be an informal assignment, nor even evince an attempt to assign. Here, as in Lahiff v. Insurance Co., supra, 76, "no transfer or assignment was made to which the company could assent, and the agent's knowledge of the conveyance of the property insured could not have the effect to create a contract of insurance between the parties, or bind the company to a contract that never was made." See Prescott v. Jones, 69 N.H. 305.

But the plaintiff takes the position that the provisions of the policy relating to sale and assignment were not intended to apply to a case where the insurer retains an interest in the premises by virtue mortgage back. As already indicated, the object of such provisions is to prevent an enhancement of the moral risk. Any change of ownership or occupation may mean an increased hazard, and where insurance companies undertake to protect themselves against such a contingency, a condition inserted in the policy for that purpose is construed "to mean what the language imports, that a sale . . . of the property renders the policy void." Baldwin v. Insurance Co., supra, 425. See also Moore v. Insurance Co., 62 N.H. 240,242; Hill v. Insurance Co., 58 N.H. 82.

While it is true that mortgage interests are safeguarded by an express provision in the policy under discussion, that provision applies only when the policy has been made payable to the mortgagee as such. The plaintiff in the present case is the administrator of the insured. It is claimed that the support which the grantee promised as the consideration for the conveyance was not furnished in the lifetime of the insured, and that the mortgage conditioned to secure that support is now in process of foreclosure.

What has transpired since the fire is not material, however; for the rights of the parties were fixed "at the moment of the loss." Hall v. Association, 64 N.H. 405, 406. If, therefore, the plaintiff can maintain this action, it must be by reason of the interest his intestate had as mortgagee at the time the property was destroyed. "But even if the plaintiff had an insurable interest at the time of the fire, the conveyance . . . was a change of title that defeats the plaintiff's right of recovery upon this policy, which contains stipulation that any change of title shall render the policy void. The question is not whether there still remained an insurable interest in the plaintiff, but whether the plaintiff can recover under this policy. By the express terms of his contract, the plaintiff agreed that he should have no right of action for property conveyed with out notice to the defendants; and the law does not annul or alter his contract." Baldwin v. Insurance Co., supra, 423.

On the evidence submitted, the defendant was entitled to a directed verdict. No additional facts susceptible of proof have been suggested which would change that result. The exceptions are sustained.

Judgment for the defendant.

All concurred.