
    Elisha Kingsley & another vs. The New England Mutual Fire Insurance Company.
    A policy, issued by a mutual fire insurance company to the owner of the buildings insured, was by him assigned, with the assent of the company, to a purchaser of the premises, who mortgaged back the premises to his grantor, and with the assent of the company reassigned the policy to him “ to hold as collateral security for the performance of the condition of said mortgage.” It was held, that in case of loss the original assured might maintain an action on the policy in his own name.
    In a policy of insurance on a paper-mill, fixtures and machinery, these words, “ on condition that the applicants take all risk from cotton waste,” inserted between the statement of the sum insured on the property, and the statement of the place where tire property is situated, do not constitute a condition nor an exception; and in case of loss, the burden of proof is on the insurers to show that it was occasioned by cotton waste.
    A mutual fire insurance company, in a policy issued by them, promised, “ according to the provisions of the act incorporating ” them, to pay the assured a certain sum within three months after the destruction of the premises by fire, “ and due notice thereof as aforesaid: ” There was no previous mention of notice in the policy: But the act referred to, a printed copy of which was annexed to the policy, contained a provision that notice of any loss should be given in writing at the office of the company within thirty days after the loss: And one of the bylaws of the company, which were also printed on the policy, required any person insured, and sustaining loss or damage by fire, “ forthwith to give notice thereof, as required by the act of incorporation, and also, as soon as practicable, to furnish the office with a particular account of such loss or damage,” in a specified form. It was held, that the assured under this policy, on giving to the company reasonable notice of a loss, was entitled to recover, although he did not comply with the requirements of the act and by-laws.
    In an action brought by the original assured on a policy of insurance, which with the assent of the insurers, had been assigned to a purchaser of the premises insured, and reassigned as collateral security for the performance of the condition of a mortgage made to him by the purchaser, the declarations of such purchaser and mortgagee, though in possession of the premises at the time of the fire, as to the contents of the building and the cause of the fire, are inadmissible in evidence against the plaintiff.
    This was assumpsit on a policy of insurance. The declaration contained two counts, the first of which set forth the interest of the plaintiffs in the premises insured at the time of the insurance and of the fire, the making of the policy by the defendants, whereby they promised the plaintiffs, within three months after a loss by fire and notice thereof in writing, to ascertain and determine the amount of the loss and pay the same to the plaintiffs; a loss by fire within the time limited in the policy; notice to the defendants; and their refusal to pay the same. The second count was as follows: —
    “And also for that on the eighth day of September, A. D., 1846, the plaintiffs were the owners of a certain other paper-mill and the permanent fixtures thereof and the machinery therein, situated in Swanzey aforesaid, of great value, to wit, said paper-mill and permanent fixtures, of the value of two thousand dollars, and said machinery, of the value of sixteen hundred dollars, and they continued to own all said property until the 16th day of April, A. 1)., 1847, when they conveyed said paper-mill and permanent fixtures to one Samuel H. Cudworth, who on the same day mortgaged said paper-mill and permanent fixtures to the plaintiffs, and said plaintiffs continued interested in all of said property until the destruction thereof by fire on the fifth day of August, A. 1)., 1849, and the said defendants at Concord, N. II., to wit, at said Eall Itiver, on the eighth day of September, A. D., 1846, in consideration of a certain premium, then and there paid in money, and of a certain premium note, by the plaintiffs signed and by them to the defendants delivered therefor, the defendants made a policy of insurance upon said paper-mill and permanent fixtures, and upon said machinery, and thereby promised the plaintiffs to insure them in the sum of twelve hundred dollars upon said paper-mill and permanent fixtures, and to insure them in the sum of eight hundred dollars upon their machinery, from the eighth day of September, A. D., 1846, at noon, until the eighth day of September, A. D., 1849, at noon, and by said policy promised the plaintiffs that they should become insured in and by said company, upon said property in the sum of two thousand dollars, on condition that the plaintiffs would insure the risk from cotton waste, and the said defendants promised the plaintiffs according to the provisions of their act of incorporation, to pay or satisfy to them, their heirs, executors, administrators, or assigns, the sum of two thousand dollars, within three months, after the said property should be burnt, destroyed or demolished, by reason or means of fire, and notice thereof given in writing to the defendants, during the time said policy should remain in force, unless, in either of said cases, the directora of said defendant corporation should within the said three months determine to rebuild the building or buildings destroyed; and the said defendant by their said policy further promised, that when and so often as the said paper-mill, permanent fixtures and machinery, or any part thereof, or any of equal value, built in the room thereof, should happen to be injured by means of fire, between said eighth day of September, A. I)., 1846, at noon, and September 8th, 1849, at noon, such damages should be made good to the plaintiffs according to the estimate thereof, or that die same should be repaired and put in as good condition as it was before such fire happened; which promises of the defendants made to the plaintiffs aforesaid were upon condition, that the plaintiffs should within thirty days after a loss give notice in writing thereof, to the defendants, and as soon after such loss as was practicable, the plaintiffs were to furnish to the defendants’ office a particular account of such loss and damage, signed and verified by the oath or affirmation of the plaintiffs, stating when and how said fire originated, so far as they knew or believed whether any and what other insurances then existed on the said property, and what was the whole value of the property insured, what was the plaintiffs’ interest therein, the dimensions, condition, and occupancy of the said paper-mill, which was to be accompanied by a certificate under the hand of a disinterested magistrate, most contiguous to the place of the fire, that he was acquainted with the character and circumstances of the plaintiffs, and had made due inquiry into the cause and origin of the fire, and as to the value of the property destroyed, and that he knew, or verily believed that loss or damage to the amount in the plaintiffs’ account really and by misfortune, and without fraud or evil practice, had been by them sustained by such fire; and until such proofs, declarations and certificates were produced by the plaintiffs to the defendants such loss was not to be deemed payable. And the plaintiffs aver, that afterwards, and while said policy was in full force, to wit, at Fall liiver, on the sixteenth day of April, A. IX, 1847, the said paper-mill and permanent fixtures were, with the land upon which the same stood, conveyed, and said policy, with the consent of the defendants, was then assigned to one Samuel H. Cudworth, and afterwards, on the same day, at said Fall River, the said Cudworth having conveyed the said mill and fixtures and land, upon which they sto.od, to the plaintiffs in mortgage, the said Cudworth, with the assent of the defendants reassigned said policy to the plaintiffs, and the defendants then and there thereby affirmed their aforesaid promises and undertaking made by said policy to the plaintiffs. The plaintiffs aver, that afterwards and before the expiration of the time limited in said policy, to wit, on the fifth day of August, A. I)., 1849, the said paper-mill, permanent fixtures and machinery were accidentally and by misfortune totally destroyed by fire, of which said loss notice in writing was forthwith and within thirty days from said loss was given to the defendants end as soon as practicable thereafter, to wit, on the twenty-first day of February, A. E., 1850, the plaintiffs delivered to the defendants a particular account of their said loss under their hands, verified by their oaths, and did at the same time declare that no other insurance was made on said property : that the condition of said property was in good running order, that the dimensions of said paper-mill building- were fifty feet long and twenty wide and four stories high, with an addition thereto of twenty feet square, which was built on and made a part of said building, and which said addition was one story in height: they also set forth in said statement of loss, &c., that at the time of said fire and loss, said buildings were in the occupancy of Samuel H. Cudworth, as tenant in fee, but subject to a certain mortgage to the plaintiffs upon which there was then due the plaintiffs the sum of three thousand dollars and upwards, which said sum still remains due to the plaintiffs, The plaintiffs also set forth in their said statement of loss the value of said property, and did procure a certificate under the hand of John Mason, Esq., the magistrate most contiguous to the place of said fire, not concerned in said loss, nor related to the plaintiffs, that he was acquainted with the character and circumstances of the plaintiffs, and verily believed that they really and by misfortune had sustained by said fire loss and damage to the amount of the sum in said certificate mentioned, to wit, in three thousand dollars or thereabouts, which said certificate -as delivered to said plaintiffs with the proofs aforesaid. Yet, though requested, tliu defendants did not in any way proceed to ascertain and determine the amount of s.dd loss and damage, nor did they in any way rebuild or repair said loss and damage, and though the plaintiffs have done all things needful by the terms of said policy for them to do to perfect their said claim against the said defendants, and though the said three months has long since elapsed, they have not paid said plaintiffs said sum of two thousand dollars, or any part thereof, but neglect and refuse so to do.”
    
      At the trial before Metcalf, J., the plaintiffs offered in evidence a policy, executed by the defendants, the material part of which was as follows: —
    “ This policy witnesseth, that whereas Elisha Kingsley, of Swanzey, in the county of Bristol, and Luther Kingsley, of Fall River, in said county, and state of Massachusetts, have become member's of the New England Mutual Fire Insurance Company, and bound and obliged themselves and their heirs, executors and administrar tors, to pay all such sum or sums of money as may be assessed by the directors thereof, pursuant to the act incorporating said company, hereto annexed, and also secured to said company the sum of four hundred and twelve dollars, being the amount of the deposit or premium note for insuring the sum of two thousand dollars unto the said B. & L. Kingsley, their heirs, executors, administrators and assigns, on the following property, to wit: on their paper-mill and permanent fixtures, twelve hundred dollars, $1200, on their machinery eight hundred dollars, $800, on condition that the. applicant take ail risk from cotton íroste, situate as described in their application, reference being had to the application of the said E. & L. Kingsley, for a more particular description, and as forming a part of this policy, during the term of three years, commencing at noon, on the eighth day of September, eighteen hundred and forty-six, and ending at noon, on the same day of the same month, eighteen hundred and forty-nine. Now be it known, that wc, the members of said company, for and in consideration of the premises, do hereby certify that the said E. & L. Kingsley have become insured in and by said company, upon the property aforesaid, in the sum of two thousand dollars. And we do therefore promise, according to the provisions of said act, to pay or satisfy the said E. & L. Kingsley, their heirs, executors, administrators, or assigns, the sum of two thousand dollars, within three months next after the said property shall be burnt, destroyed, or demolished by reason or means of fire, and due notice thereof given as aforesaid, during the time this policy shall remain in force; unless in either of said cases the directors shall, within the said three months, determine to rebuild the building or buildings destroyed. And we do further promise, that when the property aforesaid, or any part thereof, or any other of equal value, built or supplied in the room thereof, shall happen to be injured by means of fire, such damages shall be made good, according to the estimate thereof, or repaired and put in as good condition as the same was before such fire happened.”
    On the back of the policy was a “ transfer,” whereby the plaintiffs, “having sold and conveyed the buildings within mentioned, and the land whereon they stand, to Samuel H. Cudworth,” assigned the policy to him, to hold the same, subject to all the liabilities and entitled to all the rights and privileges to which the plaintiffs were liable and entitled by virtue thereof; and also an “ assignment,” whereby Cudworth, “ having mortgaged the buildings within mentioned, and the land whereon they stand,” to the plaintiffs, assigned the policy to them, “to hold as collateral security for the performance of the condition of said mortgage.” Both assignments were assented to by the defendants.
    The defendants’ act of incorporation and their by-laws were also printed on the back of the policy. Said act contained the following provisions: “ § 7. When any person shall sustain any loss by fire of buildings or other property insured by said company, he shall, within thirty days after such loss, give notice thereof in writing, at the office of said company; and the directors, upon a view of the same, or in such other manner as they may deem proper, shall ascertain and determine the amount of said loss or damage.” “ § 8. The directors shall settle and pay all losses within three months after notice shall have been given as aforesaid, unless they shall judge proper, within that time, to rebuild, repair or replace the property destroyed, which they are hereby empowered to do, in convenient time, provided they do not lay out and expend in such case more than the sum insured thereon.” Among the by-laws was the following: —
    "11. All persons insured in this company, and sustaining loss or damage by fire, are forthwith to give notice thereof, as required by the act of incorporation; and also as soon thereafter as practicable, to furnish the office with a particular account of such loss or damage, signed and verified by their oath or affirmation, stating when and how the fire originated, so far as they know or believe; whether any, and what other insurance existed on the same property; what was the whola value of the property insured; what was their interest therein; the dimensions, condition and occupancy, of the building insured, or containing the property insured ; accompanied by a certificate, under the hand of a disinterested magistrate, most contiguous to the place of the fire, that he is acquainted with the character and circumstances of the person or persons insured, and has made due inquiry into the cause and origin of the fire, and also as to the value of the property destroyed, and knows, or verily believes, that loss or damage to the amount mentioned in their account, really and by misfortune, and without fraud or evil practice, has been by them sustained, by such fire: and until such proofs, declarations, and certificates are produced, the loss shall not be deemed payable.”
    The defendants objected to the admission of the policy and assignments in evidence, on the ground that the declaration set forth a policy to the plaintiffs and on their interest, while the policy offered was on the interest of Cudworth, and that this was a variance; and also that the action should have been brought in the name of Cudworth. But the presiding judge overruled these objections.
    
      The defendants insisted that several conditions contained in the defendants’ charter and by-laws, as above set forth, must be performed before any loss should be payable. And they objected to the admission of the policy in evidence, because the first count set forth an unconditional contract, while the policy produced was conditional, and that in this there was a variance between the proof and the declaration; and because in the second count it was not averred that the fire did not proceed from cotton waste. But the presiding judge overruled the objections, and admitted the evidence.
    The plaintiffs, to show their interest in the premises insured, introduced a deed thereof to them from Reuben Chace, dated February 2d, 1836, a deed of the same from them to Samuel H. Cudworth, dated April 1st, 1847, and a mortgage thereof, dated the same day, from Cudworth to them, with notes secured by said mortgage to the amount of three thousand three hundred dollars.
    It was in evidence that the buildings insured were destroyed by fire early in August, 1849; that Cudworth was in possession of the mill at the time of the fire, and had been for two or three years, and had used the machinery during that time; that cotton waste was commonly used in making such paper as was made in this mill. But there was no evidence tending to show the cause or origin of the fire.
    Morton Eddy, called by the plaintiffs, testified that he was the agent of the defendants solely for the purpose of receiving applications for insurance; that on the 8th of August, 1849, at the request of the plaintiffs, he wrote a letter to the defendants, giving them notice of the loss; that within a month afterwards the defendants’ president, who had received this letter, came to Fall River, and went with him to view the premises. The defendants proposed to ask this witness in relation to the declarations of Cudworth as to the contents of the mill and the cause of the fire; but this was objected to by the plaintiffs, and ruled out by the judge.
    The defendants produced upon the plaintiffs’ demand, and the plaintiffs offered in evidence, a statement of loss, and a certificate thereof, signed by John Mason, a justice of the peace, which it was agreed were delivered to the defendants on the 19th of February, 1850. But the plaintiffs offered no evidence to show, that the statement and certificate were delivered to the defendants as soon as practicable after the fire, or to excuse the delay.
    The defendants contended, 1. That the plaintiffs should show that the loss was occasioned from some cause other than cotton waste; 2. That the plaintiffs should show that they, or some one acting for them, gave notice in writing of the loss to the defendants, at their office, within thirty days after the happening thereof, and according to the 7th section of the defendants’ charter; 3. That as the statement of loss appeared, on its face, to have been delivered to the defendants more than six months after the fire, it was not primé facie delivered as soon as practicable, as required by the 11th bylaw, and that the plaintiffs should have shown some excuse for the delay; 4. That the plaintiffs should have shown that the magistrate who furnished the certificate of loss was the one most contiguous to the place of the fire, as required by the 11th by-law; and that as no evidence had been offered on any of these points the plaintiffs had failed to make out a case. But the judge overruled these objections, and directed that the case should go to the jury.
    The defendants contended that the plaintiffs had not shown such an interest in the personal property insured, at the time of the loss, as to entitle them to maintain their action for the loss thereof.
    The defendants requested the judge to instruct the jury, that the burden of proof was on the plaintiffs, to show that the loss accrued in some other way than from cotton waste; that the plaintiffs should show that they had given notice in writing to the defendants, within thirty days from the loss, and that the notice by Eddy, under the circumstances, was insufficient ; and that the plaintiffs should show that the statement of loss was made by the plaintiffs as soon as practicable, and that the magistrate who gave the certificate was the one most contiguous to the place of the fire. But the judge declined to do so, and instructed the jury that if they found the fire and loss were occasioned by cotton waste, the defendants were not liable; and that if it arose from any other cause, no fraud being imputed to the plaintiffs, the defendants would be liable.
    The jury thereupon found a verdict for the plaintiffs, and the case was reported for the consideration of the full court. If the instructions, rulings and directions are correct, the verdict is to stand; and if not, it is to be set aside and a new trial granted, or such other disposition made of the cause as the court shall order.
    
      C. B. Farnsworth, for the defendants.
    
      T. D. Eliot and W. P. Sheffield, for the plaintiffs.
   Metcalf, J.

The first point taken by the defendants in argument is, that the action cannot be maintained in the name of the plaintiffs, and that it should have been brought in the name of Cudworth. But we are of opinion, that the assignments of the policy, with the express consent of the defendants, enable the assignees to sue on it in their own names; that such consent to the assignments operates as a promise to pay the loss to them. See Crocker v. Whitney, 10 Mass. 316 ; Wilson v. Hill, 3 Met. 69. If, as the defendants admit, the plaintiffs’ assignment to Cudworth authorized him to sue in his name, we do not see why his assignment to them does not authorize them to sue in their names.

The next point taken by the defendants is, that there is a variance between the declaration and the policy declared on, which rendered the policy inadmissible in evidence. It is contended that, by the policy, the loss is made payable on three conditions precedent, which are not all mentioned in either of the counts in the plaintiffs’ declaration, and therefore that neither of the counts is supported by the policy. In order to make this point intelligible, it is necessary to set forth the policy. [Here the judge recited that part of the policy, set forth, ante, 396].

In the brief which has been presented to the court by the defendants’ counsel, this position is taken: “ The policy is on condition, first, that the insured shall take all the risk from cotton waste; second, that after loss, and within thirty days, the insured will notify the defendants thereof forthwith; and third, that as soon afterwards as practicable they will furnish the defendants a particular statement of the loss, under oath, and a certificate of the nearest magistrate to the facts.”

As to the first of these alleged conditions: The words, on condition that the applicants take all risk from cotton waste,” are most awkwardly inserted between the statement of the sums insured on the property, and the statement of the place where the property was situate; and we cannot conjecture any reason for inserting them there, except that in the printed form of a policy, which was used and filled up, in this case, there happened to be left there the only blank space in which they could be written. But though the term “ condition ” is used, yet these words do not constitute a condition, in its legal sense, as it is defined or described in all the law dictionaries. For, from the nature of the case, there was nothing which the insured or any other party was to do or to omit, by way of performing the supposed condition, and no event was lo happen in order that it might be saved. What then are the legal meaning and effect of these words ? We are of opinion that they are to be regarded as a proviso added to the policy, and expressing the intention of the defendants not to insure against the risk of fire originating in cotton waste, nor to pay a loss caused by a fire thus originating. We cannot regard the words as an exception to the loss by fire, for which the defendants promised to pay; for they are not inserted in that part of the policy which contains the promise to pay, nor are they there referred to ; but they are inserted in the preamble or recital which precedes the promise. If they had been inserted after the words, “ burnt, destroyed or demolished by reason or means of fire,” perhaps they might have constituted an exception, which the plaintiffs should have noticed and negatived in their declaration. See Vavasour v. Ormrod, 6 Barn. & Cres. 430; Lounsbury v. Protection Ins. Co. 8 Conn. 459.

We have expressed our opinion, in this place, concerning the legal meaning and effect of the words in question, not because il, was necessary for the purpose of deciding the matter of variance, but for an ulterior purpose, which will appear when we come to the last question in the case. For, admitting the defendants’ construction of the policy to be correct, their objection of variance cannot prevail; because the second count in the plaintiffs’ declaration alleges that the defendants insured the property on condition that the insured should take all risk of cotton waste. So far, then, as respects this condition, (so termed,) the policy precisely met the allegation in that count, and was rightly admitted in evidence, to prove it. Unless, therefore, there is in the policy some other condition, which is not mentioned in the second count, the objection of variance entirely fails.

The defendants relied on a second condition in the policy, to wit, that after loss, and within thirty days, the insured should give notice thereof to the defendants “ forthwith.” In the policy, the defendants promised, according to the provisions of their act of incorporation, to pay or satisfy the sum of two thousand dollars, within three months after a loss by foe, “ and due notice thereof given, as aforesaid.” There is in the policy no previous mention of notice, and therefore we cannot give any effect to the words “ as aforesaid,” but must treat them as surplusage. Certainly they cannot be construed as introducing into the policy a condition that any particular form of notice, prescribed elsewhere, shall be prerequisite to a party’s right to recover a loss against which the defendants have engaged to indemnify him. Reasonable notice, or, in the words of the policy, “ due notice,” is all that the plaintiffs were bound, either by the terms of the policy, or the rules of the common law, to give to the defendants. The argument for the defendants, is, that “ notice given as aforesaid,” refers to the act incorporating them, which had been previously referred to in the policy, and the seventh section of which provides, that “ when any person shall sustain any loss, by fire, of buildings or other property insured by said company, he shall, within thirty days after such loss, give notice thereof in writing, at the office of said company.” And it is further argued that the policy has reference to the defendants’ bylaws, the eleventh article of which is, that “ all persons insured in this company, and sustaining loss or damage by fire, are forthwith to give notice thereof, as required by the act of incorporation.” But as we have already said, we cannot refer the notice to be “ given as aforesaid,” to the act of incorporation or to any thing else. If the defendants meant so, they have not intelligibly said so. And the by-laws are not referred to in the policy, and form no part of it. Nor are the plaintiffs bound by them, as such, or by any of the provisions in them. The policy, therefore, is not on a condition that the insured will, within thirty days after a loss, give the defendants notice thereof forthwith; whatever the meaning of those words, taken together, may be.

The third and last alleged condition in the policy, on which the defendants rest their objection of variance, is that the plaintiffs should furnish them with a statement of the loss, according to the eleventh article of their by-laws. But we have already disposed of this point; having decided that nothing in the by-laws can be invoked into the policy. The plaintiffs were not bound to furnish a statement of their loss, certified by a magistrate, as soon as practicable, or at any time. And this is also an answer to the objection taken to the ruling at the trial, that the plaintiffs need not show that the statement of loss, which they did make to the defendants, was as soon as practicable, and that the magistrate, who gave the certificate, was most contiguous to the place of the fire.

If the provision, as to notice of loss, in the seventh section of the act incorporating the defendants, is not a condition, but is, as we have no doubt, merely directory, then it is very clear that it was not necessary for the plaintiffs to prove that they gave notice according to that provision. And though it was contended, at the trial, that the plaintiffs must prove such notice, and exception was taken to the ruling of the court to the contrary, yet the exception was waived, at the argument the defendants’ counsel admitting that it could not be sustained.

Whether there was any other variance between the declaration and the policy, besides those above mentioned, we need not inquire; because no other was mentioned at the trial. If any other had then been suggested, and found to exist, the plaintiffs might have had leave to amend. It is now too late to bring forward any new objection of this kind. Nor can we, in this stage of the case, be called on to inquire whether the declaration is good or bad.

As Cudworth was a competent witness, his declarations, which the defendants attempted to give in evidence, were properly excluded.

The last question in the case is, whether the jury ought to have been instructed, “that the burden was on the plaintiffs to prove that the loss accrued in some other way than from cotton waste.” And this question is virtually decided by the decision that the words, “ on condition that the applicants take all risk from cotton waste,” have not the effect of an exception, but of a proviso: namely, to defeat the defendants’ promise, conditionally, and avoid it by way of defeasance or excuse. It is a familiar doctrine, that the party for whom matter of excuse is furnished, whether by statute or by agreement, must bring it forward in his defence, and support it by evidence. Judgment on the verdict.  