Jordan v. Dobbins,

the due payment for the space of twelve months of bills to be discounted, and the court held that the guarantor might revoke it at any time within the twelve months, and that the plaintiff could not recover for bills discounted after such revocation. The ground of the decision was that the defendant's promise by itself created no obligation, but was in the nature of a proposal which might be revoked at any time before it was acted on.

Such being the nature of a guaranty, we are of opinion that the death of the guarantor operates as a revocation of it, and that the person holding it cannot recover against his executor or administrator for goods sold after the death. Death terminates the power of the deceased to act, and revokes any authority or license he may have given, if it has not been executed or acted upon. His estate is held upon any contract upon which a liability exists at the time of his death, although it may depend upon future contingencies. But it is not held for a liability which is created after his death, by the exercise of a power or authority which he might at any time revoke.

Applying these principles to the case at bar, it follows that the defendant is entitled to judgment. The guaranty is carefully drawn, but it is in its nature nothing more than a simple guaranty for a proposed sale of goods. The provision, that it shall continue until written notice is given by the guarantor that it shall not apply to future purchases, affects the mode in which the guarantor might exercise his right to revoke it, but it cannot prevent its revocation by his death. The fact that the instrument is under seal cannot change its nature or construction. No liability existed under it against the guarantor at the time of his death, but the goods for which the plaintiffs seek to recover were all sold afterward.

We are not impressed by the plaintiffs' argument that it is inequitable to throw the loss upon them. It is no hardship to require traders, whose business it is to deal in goods, to exercise diligence so far as to ascertain whether a person upon whose credit they are selling is living.

The decision in Bradbury v. Morgan, 1 H. & C. 249, upon which the plaintiffs rely, was rested upon reasoning which appears to us to be unsatisfactory and inconsistent with the opinion of the same court a year before, in Westhead v. Sproson, 6 H. & N. 728, and with the decision in Offord v. Davies, ubi supra, at the argument

Fowle v. Springfield Insurance Company.

of which Bradbury v. Morgan was cited; and it has not since been treated as settling the law of England. Harris v. Fawcett, L. R., 15 Eq. 311, and L. R., 8 Ch. 866. The reasons of the similar decision in Bank of South Carolina v. Knotts, 10 Rich. 543, are open to the same objections.

Judgment for the defendant.

FOWLE V. SPRINGFIELD INSURANCE COMPANY.

Fire insurance

(122 Mass. 191.)

·Description of interest· False swearing in proof of loss.

A policy of insurance on a building was conditioned to be void unless "the interest of the assured, whether as owner, lessee, or otherwise in the prop erty, shall be truly stated in the policy," and also for false swearing in the proof of loss. The building was built by the assured upon land leased by them for a term of years and under a provision that at the expiration of their lease, the building should be delivered up to the lessor. The policy described the building as“ their two-story brick building situated on leased land," and in the proof of loss which was sworn to, they stated that the building belonged to them and that no one else had any interest in it. Held, that the policy was not avoided either for insufficient description of interest or for false swearing in the proof of loss.

A

CTION on a policy of insurance issued by defendants to plaintiffs on "their two story brick and graveled-roof building, occupied, etc., situated on leased land."

The opinion states the case.

If on the facts the plaintiffs were entitled to recover, judgment was to be rendered for them accordingly; otherwise for the defendant.

This case was argued in March, 1875, and reargued in November,

1876.

B. F. Thomas, for plaintiffs.

A. L. Soule, for defendants.

ENDICOTT, J. The defendants were sub-lessees of the land on which the building insured stood, and their lease, which was for

Fowle v. Springfield Insurance Company.

ten years and eight months, expired on March 1, 1873. During the term, and before obtaining this policy, they had removed a building standing on the premises, and on its site had erected the present building. This they had a right to do under the lease, which provided that at its expiration they should quit and deliver up the premises, with such buildings and additions as they had erected thereon. No question is made by the plaintiffs, that the building thus erected, and insured by this policy, attached to the land, became part of the real estate, and would pass to the owner of the soil at the end of the term. The policy was issued January 10, 1871, more than two years before the expiration of the lease, and the loss occurred within the term.

The policy contains the provision that "the interest of the assured, whether as owner, consignee, factor, lessee or otherwise, in the property to be insured, shall be truly stated in the policy, otherwise the same shall be void." The insurance, as stated in the policy, is on" their two story brick and graveled-roof building, occupied by them for a carpet store, situate on leased land in rear of No. 106 Washington street, Boston." The defendant contends that the description does not truly state the interest of the assured in the property, and the policy is therefore void.

The plaintiffs had an insurable interest in this building. They had erected it at their own expense, and used and occupied it, in their business, as a carpet store. They might wish to rebuild it, or to indemnify themselves for their expenditure, in the event of its loss by fire. In either case, it was proper for them to procure insurance, and they might lawfully do so to the extent of the value of the building. It is clear that they would derive benefit from its continuing to exist, and would be injured by its destruction.

Having this insurable interest, in the absence of inquiry by the defendant, or of any provision in the policy calling for a statement of the nature of their interest, the description in the policy would have been sufficient. The words "their two story brick and graveled-roof building" do not necessarily import an absolute legal title in the building itself. The words "his" or "their" used in a policy, as descriptive of the property of the assured, do not render the policy void, if the insured has an insurable interest, although the interest may be a qualified or defeasible, or even an equitable interest. Fletcher v. Commonwealth Ins. Co., 18 Pick. 419;

Fowle v. Springfield Insurance Company.

Strong v. Manufacturers' Ins. Co., 10 id. 40; Curry v. Commonwealth Ins. Co., id. 535; King v. State Ins. Co., 7 Cush. 1; Hough v. City Ins Co., 29 Conn. 10; Clapp v. Union Ins. Co., 7 Foster, 143; Swift v. Vermont Ins. Co., 18 Vt. 305; Tyler v. Etna Ins. Co., 12 Wend. 507. See Niblo v. North American Ins. Co., 1 Sandf. 551; Irving v. Excelsior Ins. Co., 1 Bosw. 507. The words may, therefore, be properly applied to property in which the insured have a valuable interest, which is in their possession and control, the right to which they may protect and enforce at law, and by the destruction of which they may sustain a serious loss.

As the description of the building as "their" building was not in itself such an inaccurate description as to void a policy containing no provision that the interest of the assured shall be truly stated, the question arises whether the further statement that the building is situate on leased land" is a sufficient compliance with the provisions of this policy that requires a true statement of the interest of the assured in the property," whether as owner, consignee, factor, lessee or otherwise." This clause, being in the body of the policy, and inserted for the benefit of the insurers, as against them, is to be construed strictly. It calls for the character of the interest, and not for the extent of the interest to be stated in detail. When the policy states to which of the classes named in the provision the interest of the assured belongs, it is sufficient, and if the insurer desires further details he should make further inquiry. Williams v. Roger Williams Ins. Co., 107 Mass. 377; s. c., 9 Am. Rep. 41. In that case the liability of a mortgagee, as indorser on the mortgage note, to an assignee of the mortgage, was held to give the mortgagee an insurable interest; and that the statement in the policy that he was mortgagee was a sufficient compliance with the provision of the policy requiring a true statement of his interest, although he had assigned the mortgage, and might not be called upon to pay his note. In Hope Ins. Co. v. Brolaskey, 35 Penn. St. 282, the policy contained a similar clause. The buildings insured stood upon leased land, and the insured had a right to remove them at the end of the term. They were described in the policy as his buildings, and no reference was made to he fact that he was lessee only of the land. It was held that, the insured being the absolute owner of the buildings, he could insure them as such, and was not bound to disclose the extent of his interest in the land.

Fowle v. Springfield Insurance Company.

In the opinion of a majority of the court, therefore, the description of the building, as a building belonging to the plaintiffs, was, on the facts disclosed, sufficiently accurate, in the absence of an express stipulation in the policy; and it did not become inaccurate because, in compliance with the stipulation of the policy, the nature of their interest in the building is in substance described to be that of lessees, as distinguished from that of owners, by the statement that it is situate on leased land. Having the right to insure it as their building, the statement that it is on leased land implies that whatever interest the insured have in the building is subject to the terms of a lease, the particulars of which are not called for by the policy, or made the subject of specific inquiry. To hold otherwise would be to decide that the words of the description are equivalent to a warranty on the part of the plaintiffs that they had the right to remove the building at the end of the term. Even if it may be said that the right to remove is to be implied from the language used, it is also to be implied from the description of the building that it was permanently attached to the land, and so built and situated that it was incapable of removal.

The statement of the plaintiffs in their proofs of loss as to their interest in the property must be taken in connection with the subject-matter of the insurance as described in the policy. Even if not strictly accurate, it does not avoid the policy, for the policy contains no provision to that effect. It merely requires that the interest of the assured shall be set forth in the proofs of loss, with the names of the true owners. This is directory merely, and, if not complied with to the satisfaction of the defendant, further information should have been called for. "If there appear any fraud or false swearing, the assured shall forfeit all claim under this policy." But that is not imputed to the plaintiffs upon this agreed statement.

The result is, that upon the facts stated the plaintiffs are entitled to judgment.

COLT, J., delivered a dissenting opinion. in which DEVENS, J., concurred.

Judgment for plaintiffs.