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plaintiff not having objected to the occupancy, nor claimed the right to occupy himself, and the tenant not having attorned to him.
ATLANTIC Mutual FIRE INSURANCE COMPANY 1. Concklin.
Insurance by Foreign Companies -- Returns to Secretary of Commonwealth.
Revised Statutes, c. 37, § 41, requiring agents of insurance companies to make return to the secretary of the commonwealth of the amount of their capital and how invested, &c., does not apply to mutual companies.
Nor does the provision of Statute 1847, c. 273, requiring such agents to make return of the amount of capital or reserve, apply to such mutual companies as are not required by law to have any reserve.
The obligation to make return every half year of the amount of insurance effected during the then last half year, does not require the first return to be made until the end of the half year after the company have actually begun to issue policies, although they may have been incorporated, and authorized to act at an earlier period.
HALE v. MECHANICS' Mutual FIRE INSURANCE COMPANY.
Insurance — Covenant against Subsequent Insurance.
Under a by-law of a mutual fire insurance company, providing that insurance subsequently obtained, without the written consent of the president, shall annul the policy; subsequent insurance, obtained by the owner of property insured, with the mere verbal assent of the president, avoids a policy obtained by him, though payable in case of loss to another person, and by such person assigned to a third.
KENNEBEC COMPANY v. AUGUSTA INSURANCE AND BANKING
Insurance -- Subsequent Alteration of Contract by Parol — Power of One
Defendants, a company incorporated by the laws of another state, made to plaintiff's an open policy on “property on board vessel or vessels,” &c., “as per indorsements to be made.” This policy was effected through, and countersigned by defendants' agents in Boston.
Afterwards the agents agreed with plaintiffs to insure under this policy, certain cotton at and from New Orleans to Boston, and to take the risk of fire on shore at New Or. leans. Some of the cotton was burnt at New Orleans without having been shipped.
After the news reached Boston, the agents made the indorsement of the risk on the policy, but added a qualification which had not been agreed upon, and would have prevented a recovery.
Held, that the general agents of defendants had authority, in absence of any proof of limitation to their powers, to alter the terms of the contract of insurance, so as to include risks to the property while on shore.
And the agents being partners, that one could make the alteration : that the alteration was duly made and evidenced, and bound the defendants to pay the loss.
FULLER v. RUSSELL.
Mortgage - Foreclosure and Redemption.
Under Rev. Stat. c. 107, 8 13, the mortgagor may redeem, by bringing his bill on the anniversary of the day on which, three years before, the mortgagee entered to foreclose.
PALMER V. Fowley.
Mortgage — Foreclosure of Second Mortgage while First Mortgagee is
A person holding a second mortgage may enter upon the land for breach of condition and foreclose, although the holder of the first mortgage is in possession for the like purpose.
GILBERT v. THOMPSON.
Chattel — Conditional Sale of.
One who buys a chattel and takes a delivery thereof, on condition that the title shall not vest in him until payment made, cannot, before the condition is performed, make a good title to the chattel, even to a bona fide purchaser without notice.
Young v. MILLER.
Mortgage - Indorsee of Note no interest, at law, in Mortgage.
The indorsee of a note, secured by mortgage, cannot maintain a writ of entry in his own name to foreclose the mortgage, it not having been assigned to him.
MOLINEUX V. COBURN.
Delivery of Mortgage.
Proof of the execution of a mortgage of personal property by the mortgagor, and its delivery by him to a third person to be recorded, together with its subsequent possession by the mortgagee, is sufficient to warrant the jury in find. ing a due delivery.
TAYLOR v. CHEEVER.
Case of Cleverly v. Brackett considered.
The case of Cleverly v. Brackett, 8 Mass. 150, is probably misreported. The doctrine said to have been decided in that case, that one holding a pledge, cannot sue for his debt without giving up the pledge, is not law.
VEAZIE V. Willis.
Guaranty - Whether applicable to Forged Note.
Plaintiff was requested to buy a note purporting to be made by A. payable to B. and by him indorsed, and indorsed by C. and D. Before making the purchase he showed the note to defendant, who inquired about it of C., and for a valuable consideration agreed in writing to "guaranty the payment of a note, &c.," describing it as a genuine note.
The signatures of A. and B. were forgeries, but this fact was not known to either party.
Held, the guaranty applied to the forged note, and that defendant was liable.
SPARHAWK V Wills.
Contract — Whether Divisible. A note was given by plaintiffs to defendant for $4000, payable in one year, “ with interest payable annually," and secured by mortgage.
After the expiration of the year a suit was brought for one year's interest, judgment obtained and satisfied. On a bill to redeem, it was held that the judgment for ininterest was no merger of the principal debt.
PEMBROKE IRON Co. v. PARSONS."
Sale of a “ Cargo” of Goods, not qualified by Estimate of Quantity.
Defendant agreed to sell plaintiffs “a cargo of old railroad iron to be shipped per bark Charles William," at a certain price per ton, delivered at Boston, — “ damages of the seas excepted — about three hundred or three hundred and fifty tons." The iron was at Savannah, and the C. W. was a vessel employed in the coasting trade between Savannah and Boston. Defendant delivered only two hundred and twenty-seven tons, and that was all the C.
W. could fairly carry between these ports at that season of the year.
Held, plaintiffs could not recover for the difference be. tween two hundred and twenty-seven tons and three hundred tons, that the agreement was for a cargo, and not for any specific number of tons.
Note. – We have no doubt of the correctness of this decision, but it may interest our readers to compare it with a recent one in England upon a contract which at first view appears very similar in iis terms with that contained above. In Bourne v. Seymour, decided in the Common Pleas in England, May, 1855, 32 Eng Law & Eq. R. 455, the contract was one of sale ; the bought and sold note read thus:— “ Bought for Messrs. B. & Co. from S. about 500 tons of nitrate of soda in bags, of good merchantable quality, to be ready for delivery before 31 Dec. 1854, at &c.," (stating the terms with minuteness.) “ It is understood that the above nitrate of soda is to form the full and complete cargo of The John Phillips, 345 tons register, now on her passage to Sidney, to proceed thence, without undue delay, to the west coast of South America, there to load the above. In the unexpected event of The John Phillips getting ashore, or being unable to prosecute her voyage from any casualties of the sea, then the seller agrees to deliver, and the buyers agree to take, in
Bieu thereof, another cargo or cargoes of equal quality, to be named at the earliest practicable period prior to arrival off the coast; the nitrate of soda so substituted being liable to all the conditions of this contract. The ooly ground on which the seller is to be excused the delivery of the above nitrate of soda, is the loss of the vessel, (or that which may be substituted for it,) on her homeward voyage, in which case this contract is to be considered void, but in no other event whatever."
The John Phillips performed her voyage. It was held that this was a contract for the sale of five hundred tons, more or less, and was not limited to the amount that the J. P. would carry.
Johnson v. Rayner.
Grant — Deed — Words to pass the Soil.
In a real action, the tenant pleaded the general issue, and also as to a part of the premises, non-tenure and disclaimer; and the only issue tried was as to this portion.
Held, that a verdict that the tenant did not extend his building over the land of the defendant, was a proper find. ing in favor of the tenant upon this issue.
S. made a deed to C., granting also “a well of water, with the curves, pumps and all utensils belonging to them, as the same now stands on other land of me, the said S., and a right at all times to pass and repass to and from the said well of water, through my said other land, and to set up shears or any other machine on my said land for the purpose of reparing said well of water and the pumps therein, whenever the said C. may think proper so to do; reserving to myself and my heirs and assigns the free and uninterrupted privilege of the hand-pump, in the aforesaid well, and of the said well and water.” Held, that this was a grant of the soil occupied by the well and necessary to its enjoyment, and a reservation to the grantor of an easement therein.
CLARK V. Scudder.
Action, Local — Covenant.
On a covenant for quiet possession in a deed of land, no action lies by one who holds only by privity of estate of the covenantor, except in the county where the land lies, although it is out of the commonwealth, and both parties reside here.
VOL. IX. — NO. I. — NEW SERIES.