red claim after the decree of the probate | tion prevails, a claimant might be prevented court adjudging the estate insolvent and ap- wholly from commencing his action within pointing commissioners, but an action com- the period limited for the commencement of menced before such decree may be further actions against executors and administrators maintained provided plaintiff does not pre- (R. S. c. 89, § 14), and attention is called to sent the claim declared upon to the commis- Whittier v. Woodward, 71 Me. 161. In that sioners. Bates v. Ward, 49 Me. 87, 89, 90. case the administrator, defendant, gave noWhen, however, a claim has been presented tice of appointment December 31, 1874, and to commissioners, the claimant can neither in March, 1877, filed a petition representing commence nor maintain any suit thereon ex- the claim of the plaintiff to be exorbitant and cept an action for money had and received by for the appointment of commissioners but way of appeal. Id. p. 88. But section 19, c. no notice was ordered and none was given to 68, R. S., is not made applicable in the case plaintiff. On the 23d day of July, 1877, of claims exorbitant, unjust or illegal (Rog- plaintiff acknowledged notice, and agreed to ers v. Rogers, 67 Me. 456, 459); and under the appointment of commissioners. SubseR. S. c. 66, § 54, no option is given the claim- quently she submitted her claim to the comant of either further maintaining a suit pend- missioners, who disallowed it, and she coming or submitting his claim to the commis- menced her action for money had and resioners but he must do the latter, and the received by way of appeal, September 28, 1877. port of the commissioners is final, saving the right of appeal. It is clear that jurisdiction of such claims when committed to commissioners under R. S. c. 66, § 54, is taken from the common-law courts, and confided to the probate court. Some of the difficulties which would attend the attempt to adapt a pending action to the requirements of the statute relative to appeals are enumerated in Bates v. Ward, 49 Me. 90. [3] It is, however, urged most strenuously that the word "maintained," as used in R. S. c. 66, § 54, is equivalent to commenced or brought. It is true that this is, perhaps, the ordinary meaning of the word in legal phraseology, but it is not always so used in our statutes, as in R. S. c. 84, § 146, we find "bring and maintain," in R. S. c. 83, § 108, "brought or maintained," and in R. S. c. 107, § 16, "commenced or maintained," where the word means something more than begin or institute, and the meaning is fairly equivalent to prosecute what has been begun. See, also, R. S. c. 89, §§ 4, 6, 9, 14. It is apparent that the word "maintain" is used in three meanings, to commence (Burbank v. Auburn, 31 Me. 590, 591), to commerce and prosecute to a conclusion (Kinsey v. O. S. R. R. Co., 3 Ohio S. & C. P. Dec. 249, 250), and to prosecute to a conclusion that which has already been begun (Smith v. Lyon, 44 Conn. 175, 178). The court is of the opinion that as used in R. S. c. 66, § 54, the word "maintain" means to prosecute to a conclusion an action already begun, and that the inhibition was inserted out of abundant caution to more clearly differentiate proceedings upon such claims from those against insolvent estates, where, as we have seen, the commencement of suits is forbidden after a decree of insolvency. To inhibit the commencement of an action after the claim is duly and legally committed to the commissioners by decree of the probate court is unnecessary in view of the fact that the report of the commissioners is made final, saving only the right of appeal. R. S. c. 66, § 54. [4] It is further urged in support of plain The court held that plaintiff's action was barred by the limitation then existing of two years and six months. It will be observed that the plaintiff in Whittier v. Woodward did not acknowledge service of the petition, and agree to the appointment of commissioners until some three weeks after the period of limitation had expired, and that she had not at that time comadministrator. The court says: "She then menced any suit upon her claim against the first became a party to the process, and up to that time had a right to commence her ac tion." This is not an accurate statement as her action was then barred by the statute. What the court undoubtedly intended to say was that up to the time she became a party by acknowledging service she could have commenced her action if the limitation had not expired. In other words, one having a claim against an estate may commence an action against the executor or administrator at any time, within the period limited for the commencement of such actions, before service of notice of application made to the probate court for the appointment of commissioners, and, unless such notice is given within the time limited, the jurisdiction of the probate court does not attach and any subsequent proceedings therein are of no avail. The difficulty experienced by plaintiff in Whittier v. Woodward arose from failure seasonably to commence suit or to become party to the statutory process. Her suit was an appeal from the action of commissioners upon a claim already barred when she became party to that process. Had she commenced an action at law upon her claim seasonably, the proceedings had upon the application of the administrator could not have been successfully pleaded in bar. If before her claim is barred service is made upon or acknowledged by the claimant under the statute process, the subsequent steps, it is unnecessary to state, are unaffected by the statute of limitations. The entry must be: CARLETON v. PATRONS' ANDROSCOGGIN MUT. FIRE INS. CO. (Supreme Judicial Court of Maine. March 25, 1912.) 1. INSURANCE (§ 130*)-ACCEPTANCE OF APPLICATION-NECESSITY. A policy of insurance is a contract founded on a proposal on one side and an acceptance on the other; and it does not become operative as a contract until the application is accepted. (Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 195-202; Dec. Dig. § 130.*] 2. INSURANCE (§ 645*) — FIRE INSURANCE ACTIONS-RECOVERY. Where insured in a fire policy sued on the policy for a loss occurring after its issuance, he could not rely on the personal assurance of an officer of insurer to protect him until a decision on the application. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1554, 1632-1644; Dec. Dig. 8 645.*] 3. INSURANCE (§ 288*)-FIRE INSURANCEFALSE REPRESENTATIONS. A representation in an application for a fire policy that the statements therein are true must be true at the time the application is accepted and the contract of insurance completed by the issuance of a policy, so that where the applicant represented that other insurance would expire on a designated date, which was before the acceptance of the application, and thereafter and before the acceptance of the application he procured other insurance without knowledge of insurer, the representation was not true at the time of the acceptance of the application, and the policy was invalid. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 660-669; Dec. Dig. § 288.*] 4. INSURANCE (§ 388*)-MISREPRESENTATIONS -WAIVER. Where a fire policy, stipulating that it should be void if insured had other insurance, was issued on an application specifying when other insurance would expire, which was prior to the date of the policy, and no officer or agent of insurer had any knowledge of additional insurance procured by insured subsequent to the application and before the issuance of the policy until after a fire, the mere fact that insured expressed to the soliciting agent at the time of the application an intention to obtain other insurance, and that the agent said that if insured was not satisfied with the size of the policy he could get other insurance, was not a waiver by the insurer of the stipulation against other insurance. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1026, 1027, 1030, 1035; Dec. Dig. § 388.*] 5. INSURANCE (§ 388*)-FIRE INSURANCESTIPULATION-ESTOPPEL. The insurer was not estopped thereby from relying on the invalidity of the policy because of the other insurance. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1026, 1027, 1030, 1035; Dec. Dig. § 388.*] er a loss, did not by inadvertently levying an assessment on insured's premium note waive its defense or a ratification of the act of insured in procuring the additional insurance. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 942, 966, 967, 975-997; Dec. Dig. § 377.*] 7. INSURANCE (§ 336*)-FIRE INSURANCE— STIPULATIONS AGAINST OTHER INSURANCE. A fire policy stipulating that it shall be void if insured "now has or shall hereafter make any other insurance ** without the * of the company" is invalidated by the act of insured in procuring, after the date of his application, other insurance without the knowledge of insurer or any of its officers or agents. assent * [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 856-873; Dec. Dig. § 336.*] 8. INSURANCE (§ 288*)-Fire Insurance—INVALIDITY IN PART. A fire policy on a building and furniture therein is void in its entirety if void on account of prior insurance on the building. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 660-669; Dec. Dig. § 288.*] Appeal from Supreme Judicial Court, Oxford County. Assumpsit by George E. Carleton against the Patrons' Androscoggin Mutual Fire Insurance Company on a fire policy. The case, at the conclusion of the evidence, was reported to the law court for determination. Judgment for defendant. The plea was the general issue, with brief statement alleging in substance that the ment of material facts in the written appolicy was rendered void because of misstateplication for the policy, and also because of a prior valid insurance on the property when the policy in suit was issued, etc. Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ. Arteas E. Stearns, for plaintiff. John A. Morrill, for defendant. WHITEHOUSE, C. J. This is an action upon a policy of fire insurance bearing date July 1, 1910, but actually issued by the defendant to the plaintiff July 25, 1910, in the form prescribed by law for the Maine standard policy, with a rider attached thereto. It contains the following stipulation: "This policy shall be void if any material fact or circumstance stated in writing has not been fairly represented by the insured; or if the insured now has or shall hereafter make any other insurance on the said property, without the assent in writing or in print of the company." Two defenses to this action are interposed 6. INSURANCE (§ 377*)-FIRE INSURANCE- by the defendant, first, that the policy was WAIVER. rendered void by misstatement of material Where a mutual fire policy, stipulating that it should be void if insured had other in- facts contained in the written application surance, was invalidated by insured procuring signed by the plaintiff, and, second, that by additional insurance subsequent to his applica- a stipulation in the policy itself it was rention, which recited the date of the expiration dered void by a prior valid insurance policy of other existing insurance, and before the acceptance of the application, insurer, having no in the Connecticut Fire Insurance Company knowledge of the additional insurance until aft-existing when the application for the policy in suit was accepted. The case comes to the | pany paid to the plaintiff the sum of $700 as law court on report. a compromise. It satisfactorily appears The following facts are either established from the testimony that no officer or agent of by agreement of the parties or by satisfactory evidence in the case. July 1, 1910, the plaintiff made a written application to the directors of the defendant company through W. M. White, its licensed agent, for an insurance of $1,550 upon the property described in the policy, and at the same time executed a premium note to the company for the sum of $77.50, but the application was returned by the secretary for the reason that in his opinion the amount of insurance named was excessive. July 6, 1910, the plaintiff made an amended application to the directors of the company for an insurance of $1,050 upon the same property and at the same time reduced the amount of the premium note to $52.50; both application and premium note being redated July 6, 1910, and the receipt of this revised application and premium note was duly acknowledged by the secretary of the company in a letter to the agent, White, dated July 9, 1910, in which he said: "I will refer George E. Carleton's application to the directors on the 25th and I think it will be accepted in its present form, but am not sure. We will protect until they decide and I notify him." At the next regular meeting of the board of directors held July 25, 1910, the plaintiff's application with others was accepted, and soon after the policy of insurance in suit was issued and forwarded to the plaintiff by mail. the defendant company had knowledge of the Connecticut policy until after the fire. It also appears from the plaintiff's own testimony that the secretary's letter to Mr. White of July 9th, in which he stated that the plaintiff's application would be referred to the directors on the 25th, was read to the plaintiff July 14, 1910. At their next regular meeting August 29, 1910, the directors of the defendant company discussed the plaintiff's loss, and the next day the secretary notified him that the company denied its liability for the loss of his buildings. It appears that, in making an assessment of 5 per cent. on premium notes, the plaintiff's note was included and that he was notified that an assessment of $1.67 had been made on his note. This assessment the plaintiff paid on the 5th of the following October, but it was claimed on the part of the defendant that the plaintiff's premium note was erroneously included in the assessment through inadvertence, and on November 2, 1910, the cash premium, premium note, and assessment were returned to the plaintiff by the defendant company. It is not in controversy that, in an interview with the agent, White, before the policy in suit was actually issued July 25th, the plaintiff stated to the agent that he did not think $1,050 was enough, and that he was going to Rumford and get some insurance up there, and that the agent told him In the application of July 6th were the if he was not satisfied with that amount he following question and answer, namely: "Q. could get more insurance in some other comIs there any other insurance on this prop-pany the same as he himself had done. erty, if so, give name of company and But the plaintiff admits that, at the time of amount? A. $1,000, expires next Friday, Connecticut Fire Insurance Company." Thereupon the following covenant is appended to the application: "I hereby covenant to and agree to and with the said company that the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property to be insured so far as the same are known to the applicant and are material to the risk." the application for the policy in suit was filled out, the agent suggested to him that he should state when his former Connecticut policy expired, and told him that the company would want to know about that other insurance, and when it expired. It has been seen that the question of the acceptance of the plaintiff's revised application of July 6th, for the policy in suit, was referred to the decision of the directors of the defendant company at their meeting of July 15, 1910, the plaintiff obtained a pol- July 25th, and that the plaintiff was duly icy of insurance through the local agent at informed on July 14th that it would not be Rumford Falls, of the Connecticut Fire In- accepted until the 25th, if at all; and it is surance Company for $1,250 upon the same not in controversy that the application was buildings described in the policy in suit not accepted until July 25th, and that the without disclosing to that agent the pend-policy was not in fact made out and deliverency of his application to the defendant ed to the plaintiff until a short time therecompany, and this policy was held by the plaintiff August 8, 1910, when the plaintiff's buildings were destroyed by fire. The Connecticut Company at first denied their liability on the plaintiff's policy claiming that the other insurance had been obtained by the plaintiff without the knowledge or consent of that company or its agent, but later, after. [1] It is obviously unnecessary to cite authorities in support of the proposition that upon the facts above stated there could be no perfected contract of insurance between these parties until the plaintiff's application was accepted by the directors of the defendant company, although the policy, which date July 1st. A policy of insurance is a contract between the parties, and, like all other contracts founded upon a proposal on one side and acceptance on the other, it does not become operative as a complete and valid contract until the application for it is accepted. Wood on Fire Insurance, § 6 et seq.; May on Insurance, § 49 et seq.; Wainer v. Milford Fire Ins. Co., 153 Mass. 339, 26 N. E. 877, 11 L. R. A. 598; Allen v. M. M. Acc. Ass'n, 167 Mass. 18, 44 N. E. 1053; Hoyt v. M. B. Ins. Co., 98 Mass. 539; Markey v. M. B. Ins. Co., 103 Mass. 78. [2] But it appears that in his letter of July 9th, respecting the probable action of the directors upon the application of the plaintiff, the secretary of the company wrote, "We will protect until they decide and I notify him"; and it is contended by counsel that "the plaintiff had a right to rely upon this representation that from that time he was insured as fully as if he had the written policy in his possession." But it is important to remember that the plaintiff's loss did not occur between the date of the application and the time of its acceptance, but after its approval by the directors on July 25th, and after the delivery of the policy to the plaintiff. Whether the secretary's assurance of protection in the meantime would have created any liability on the part of the company for a loss which occurred before the company's acceptance of the application and delivery of the policy is a question not now before the court. The plaintiff has declared upon a policy of insurance which could not take effect as a completed contract until July 25th, and he must recover, if at all, upon that contract, and not upon the personal assurances of the secretary prior to that time, with reference to the possible contingency of a loss occurring before the acceptance of the application and issuance of the policy. [3] The covenants and representations contained in the application of July 6th have already been recited in the statement of facts, and it has been seen that, when the application was made, the agent called the plaintiff's attention to the question and answer in regard to other insurance and stated to him that the directors would wish to know about other insurance. It was necessary that such representation in the application should be true at the time when the application was accepted and contract completed. In May on Insurance, § 190, p. 385 (4th Ed.), it is said: “A representation is a continuous statement from the time it is made during the progress of the negotiations, and down to the time of the completion of the contract; so that though in point of fact the representation be true when actually made yet, if by some change intervening between that time and the time of completion of the contract it then becomes untrue, it will avoid the contract, if the change be material and to the prejudice of the insurers, or be such to the advisability of accepting the risk. The law regards it as made at the time the contract is entered into. And the same rule applies in case of concealment." See, also, Piedmont & Arlington Ins. Co. v. Ewing, P. & A. Ins. Co., 92 U. S. 377, 23 L. Ed. 610; Blumer v. Phoenix Ins. Co., 45 Wis. 622. [4, 5] In the case at bar the plaintiff's representation in regard to other insurance in his application of July 6th, which he covenanted to be a full and true exposition of all the facts, etc., was not a full statement in regard to other insurance on July 25th when his application was accepted and the contract made, for the reason above stated that in the meantime, namely, July 15th, the plaintiff had procured other insurance on the same buildings for $1,250 in the Connecticut Fire Insurance Company without the knowledge of the defendant company, and was still the holder of that policy at the time of the fire on August 8th. The contract made with the defendant company applied to a risk materially different from that described in the plaintiff's application. The minds of the parties did not meet in mutual understanding of the situation existing at the time the application was accepted, and the policy never be came a valid contract between the parties. The fact that the feasibility of procuring further insurance was mentioned between the plaintiff and the agent, and that the plaintiff expressed an intention to obtain other insurance, will not constitute a waiver or estoppel on the defendant; it being admitted that no officer or agent of the company had any knowledge until after the fire that the plaintiff had in fact obtained other insurance. Schenck v. Insurance Co., 24 N. J. Law, 447; Gray v. Germania Fire Ins. Co., 155 N. Y. 180, 49 N. E. 675; Stone v. Howard, 153 Mass. 475, 27 N. E. 6, 11 L. R. A. 771; Parker v. Rochester Ger. Ins. Co., 162 Mass. 479, 39 N. E. 179; 2 May on Ins. p. 1183, note "a." [6] Nor did the assessment by the directors of 5 per cent. on the plaintiff's premium note constitute sufficient evidence of either a waiver or ratification on the part of the company. The defendant's claim that the plaintiff's note was inadvertently included in the assessment is rendered probable by the fact that the plaintiff's claim for insurance was rejected at the same meeting, and that his assessment of $1.67, the cash premium and premium note, were subsequently returned to the plaintiff. But, in any event, it has been frequently held that a premium note, given on a policy which does not become operative, cannot be enforced, and it is not even necessary for the company to make a formal declaration that the note is void. 2 May on Insurance, § 345, p. 750; Betcher v. Capital Fire Ins. Co., 78 Minn. 240, 80 N. W. 971. And in this state it has been frequently held that when the note was orig. inally valid, and the policy was rendered assessment is no waiver of the breach. Knowlton v. Insurance Co., 100 Me. 481, 62 Atl. 289, 2 L. R. A. (N. S.) 517, and cases cited; Towle v. Insurance Co., 107 Me. 317, 78 Atl. 374. [7] But the stipulation in the policy itself that it shall be void "if the insured now has, or shall hereafter make, any other insurance on the said property without the assent in writing or in print of the company," constitutes another insuperable objection to the maintenance of this action. At the time the plaintiff's application of July 6th was accepted by the defendant company, it has been seen that the plaintiff in fact had other valid insurance to the amount of $1,250 in the Connecticut Fire Insurance Company, which he had procured on July 15th, and that no officer or agent of the defendant company had any knowledge of such prior insurance until after the fire. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1514-1518, 1556; Dec. Dig. 475;* Pleading, Cent. Dig. §§ 270-275; Dec. Dig. § 129.*] 2. PRINCIPAL AND SURETY (§ 97*)-CHANGE OF OBLIGATION-DISCHARGE. A surety's liability is not to be extended by implication beyond the terms of the contract, on the very terms of which he is entitled to stand, and is discharged by any vari which he did not consent, though he may have ation thereof between the original parties to suffered no injury by the change. [Ed. Note. For other cases, see Principal and Surety, Cent. Dig. §§ 146-154; Dec. Dig. § 97.*] 3. GUARANTY (§ 27*)-PRINCIPAL AND SURETY (§ 6*) - "SURETYSHIP" - DISTINCTIONCONSTRUCTION. being regarded as a mercantile instrument, to be construed according to what is fairly to be the parties, without strict technical accuracy, presumed to have been the understanding of but in urtherance of its spirit to promote its use and convenience in commercial intercourse. [Ed. Note. For other cases, see Guaranty, Cent. Dig. § 28; Dec. Dig. § 27;* Principal and Surety, Cent. Dig. § 6; Dec. Dig. § 6.* For other definitions, see Words and Phras es, vol. 4, pp. 3179-3186; vol. 8, pp. 7676, 6811-6813.] While a contract of guaranty differs from that of a surety, in that a guaranty is a sec ondary, while a contract of "suretyship" is a primary, obligation, the contract of guaranty Upon this state of facts under such a stip-is, nevertheless, an obligation of a surety, it ulation, the plaintiff's policy in the defendant company, if otherwise operative, was rendered void by the existence of a prior valid insurance. Lindley v. Union Ins. Co., 65 Me. 368, 20 Am. Rep. 701; Bigelow v. Insurance Co., 94 Me. 39, 46 Atl. 808. The last-named case is cited by counsel as authority for the plaintiff; but it distinctly appears that the agent of the Imperial Insurance Company, one of the companies involved in that case, had knowledge of the fact of the prior insurance there in question, admitted its liability, and paid its proportion of the loss, and it was properly held upon these facts that that company had waived the stipulation in this policy in regard to the assent in writing. On the other hand, it appears that the defendant company in that case had no knowledge of a prior insurance in the Imperial Company, and, there being no stipulation in the policy permitting other insurance, judgment was rendered for the defendant. [8] It is also familiar law that such a contract of insurance is entire, and, if void on account of prior insurance on the buildings and insurance on the furniture, cannot be recovered. Day v. Charter Oak Ins. Co., 51 Me. 91; Dolloff v. Insurance Co., 82 Me. 266, 19 Atl. 396, 17 Am. St. Rep. 482. The certificate must accordingly be judgment for the defendant. BOOTH v. IRVING NAT. EXCH. BANK. (Court of Appeals of Maryland. Nov. 22, 1911.) 1. BILLS AND NOTES (8 475*)-PLEADING (§ 129*)-ADMISSION BY-FAILURE TO DENY. Where, in a suit on a note and a written guaranty, plaintiff filed the note and guaranty with the declaration, and defendant, by his next succeeding pleading, did not deny their execution, they must be deemed admitted for 4. GUARANTY (§ 36*)-CONTRACT-CONSTRUC TION. Where defendant executed a contract of guaranty to plaintiff bank, in order to induce it to extend credit to N., who was president of an industrial corporation, and the bank was thereby induced to loan money to the corporation on a note indorsed by N. individually, N.'s liability on the note was within the guaranty. [Ed. Note. For other cases, see Guaranty, Cent. Dig. §§ 38-45; Dec. Dig. § 36.*] 5. GUARANTY (§§ 46, 45*)-NATURE OF CON TRACT-NOTICE OF DEFAULT-DEMAND. Where a guaranty contract, executed to a bank to induce it to extend credit to N., was absolute and not conditional, the bank was not required to give the guarantor notice of N.'s default, or to demand payment from N., in order to fix the guarantor's liability. [Ed. Note. For other cases. see Guaranty, Cent. Dig. §§ 56, 57, 55; Dec. Dig. §§ 46, 45.*] 6. GUARANTY (§ 67*)-CONDITIONAL GUAB. ANTY-NOTICE OF DEFAULT-FAILURE TO GIVE. Where a guaranty is conditional only, and notice of the principal's default is necessary to fix the guarantor's liability, failure to give notice will release the guarantor only from such loss as he sustained by reason of the creditor's failure to give notice. [Ed. Note.-For other cases, see Guaranty, Cent. Dig. 77; Dec. Dig. § 67.*] 7. GUARANTY (§ 57*)-DISCHARGE OF GUABANTOR-TIME OF PAYMENT-EXTENSION. Mere delay or promise to extend time of payment, without consideration, being unenforceable as between the debtor and creditor, will not discharge a guarantor. [Ed. Note. For other cases, see Guaranty, Cent. Dig. § 68; Dec. Dig. § 57.*] |