and consequently the policies if issued to them would have been wagering and speculative contracts and against public policy. (7) The delivery of the policies to the claimants, who paid the premiums, even though under an agreement with the assured, gives them at best nothing more than a claim against the estate of the insured for the amount paid as pre miums. Alvin G. Weeks and Severin M. Lamarre, both of Fall River, for plaintiff, David Silverstein, of Fall River, for claimants Olivine Potvin and Delia Lafleur. Solomon Rosen berg, of New Bedford, for Adele Patenaude, adm'x, and Solomon Patenaude, claimants. RUGG, C. J. [1] This is an action of contract brought by an administratrix to recover upon seven policies of insurance issued by the defendant upon the life of her intestate. The insurance company interpleaded acknowledging its liability upon the policies, averring that certain other persons had demanded payment of it on the policies, and bringing the moneys due on the policies into court to await final judgment. This procedure is within the express terms of R. L. c. 173, § 37, and was regular. Connecticut Mutual Life Ins. Co. v. Cook, 219 Mass. 222, 106 N. E. 853, was a different kind of case. The principle upon which it was decided does not prevent an adjudication of the rights of all parties to the present cause. O'Brien v. Ancient Order of Workmen, 223 Mass. 237, 241, 111 N. E. 955. * them. Two of the policies were issued in 1911, when Zephirin, the insured, had a talk with Olivine Potvin, who was the widow of his deceased brother, about getting himself insured for her benefit, she to insure herself in the same company and the policies to be transferred and delivered each to the other. Zephirin caused the agent of the insurance company to be sent to her and she had a policy of the same form issued upon her own life. Later Zephirin brought two policies, which he had received from the company on his own life, and delivered them, one to Olivine Potvin and the other to Delia Lafleur, who was his niece, at the same time asking for the policy upon Olivine Potvin's life, which was delivered to him. In addition to the love and affection which existed between Olivine Potvin and Delia Lafleur with Zephirin, as relatives, there was the further consideration of the delivery to him of the poliCy on the life of Olivine Potvin, to which present. These facts were known to the inno claim of ownership is made by her at surance company. The premiums on these policies all were paid by Olivine Potvin and Delia Lafleur, who retained possession of the policies until after the death of Zephirin, when they delivered them to the insurance company with the understanding that they were to receive the money on the policies. The insured had lived with Olivine Potvin and Delia Lafleur at intervals for about three years. The policies all were issued upon the life of Zephirin Potvin, to him as the assured. His interest in his own life supported each policy as an original contract when issued. The claimants were relatives of the insured by blood or connected by marriage. They had paid the premiums upon the policies in which they severally were interested. They had possession of the policies upon an oral agreement with the insured in substance to the effect that they were to have the benefit of the policies in the event of his decease. The plaintiff is the widow and administratrix of the estate of Zephirin Potvin, the insured, having been married to him after the issuance of all the policies here in question. All these policies were issued upon the life of Zephirin, payable upon his death to his “executors or administrators," no other bene ficiary being named in the policies except that payment by the insurer was authorized "to any relative by blood or connection by marriage of the insured or to any other person appearing to said company to be equitably entitled to the same by reason [2, 3] These facts warrant a finding that of having incurred expenses on behalf of the there was the equivalent of an unqualified insured for his or her burial or oral assignment of each policy accompanied for any other purpose." But this clause is by its delivery. This was sufficient in the not here pertinent because the insurer has absence of a prohibition of such assignment not acted under it. Five of the policies were to transfer a right to the assignee or assignissued in 1906, when the insured was workees. Leinkauf v. Calman, 110 N. Y. 50, 17 ing with his nephews, sons of a deceased sis- N. E. 389; Rahders v. People's Bank, 113 ter, Solomon and Henry J. Patenaude, in Minn. 496, 130 N. W. 16, Ann. Cas. 1912A, the latter's store, and were immediately 299; Evans v. Bulman, 91 Md. 84, 87, 46 turned over to Solomon and Henry J., the Atl. 315; Nashville Trust Co. v. First Nainsured asking them to take the policies, pay tional Bank, 123 Tenn. 617, 627, 134 S. W. 311. the premium, and help him, if it ever was It gave to the claimants at least an equitable necessary. They took the policies and paid interest in the policies. Campbell v. New the premiums (except that the widow and England Mutual Life Ins. Co., 98 Mass. 381, administratrix of Henry paid after Henry's 389, 400; Herbert v. Simson, 220 Mass. 480, death), and they helped the insured the two 108 N. E. 65, L. R. A. 1915D, 733. Since the or three times which he requested. Solomon insurance company makes no objection the Patenaude and the administratrix of Henry plaintiff cannot complain that there has been J. Patenaude, being still in possession of no formal assignment or that the claimants these policies, claim the amounts due upon have no interest in the life of the insured. Dixon v. National Life Ins. Co., 168 Mass. 48, | commission unless he made an arrangement 46 N. E. 430. with mortgagees whereby they should take new mortgages, and the broker did not bring about such arrangement, he was not entitled to commission. The delivery of the policies under the circumstances here disclosed operated as an assignment of the beneficial interest in them to the exclusion of the personal representatives of the insured. King v. Cram, 185 Mass. 103, 69 N. E. 1049; Knowles v. Knowles, 205 Mass. 290, 294, 91 N. E. 213. [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 70; Dec. Dig. 49(1).] 3. APPEAL AND ERROR 205-RESERVATION OF GROUND OF REVIEW-EXCLUSION OF EVIDENCE. Where no statement was made of what plaintiffs expected to prove by a witness, exceptions to the exclusion of his testimony can be overruled. [4] There is nothing to indicate that the policies were wagering contracts. An assignee of a life insurance policy need have no insurable interest in the life of the insured. As was said by Hammond, J., in Brogi v. Brogi, 211 Mass. 512, at 515, 98 N. E. 573,4. 574: "The law in this commonwealth has been settled, and it is now held, in accordance with what seems to be the great weight of authority, that in the absence of any evidence indicating that the transaction was intended as a wagering contract it is not necessary that the beneficiary or assignee should have an insurable interest." To the same effect is Grigsby v. Russell, 222 U. S. 149, 32 Sup. Ct. 58, 56 L. Ed. 133, 36 L. R. A. (N. S.) 642, Ann. Cas. 1913B, 863. This is enough for the decision of this case without intimating whether under the circumstances the claimants may have had an insurable interest. The fact that the premiums were paid in the instant cases by the claimants under agreements distinguishes them from Lewis v. Metropolitan Life Insurance Co., 178 Mass. 52, 59 N. E. 439, 86 Am. St. Rep. 463. The plaintiff's first, fourth and seventh requests for rulings rightly were denied, and the general finding for the claimants must stand. The case has been decided on its merits and no question of practice need be considered. The demurrer rightly was not sustained and the exceptions must be overruled. So ordered. (225 Mass. 177) COHEN v. EDINBERG. 1. Vendor anD PURCHASER -345-REFUSAL Where a written agreement for the purchase of land provided that arrangements were to be made with parties holding construction mortgages whereby the mortgages should be discharged and new mortgages given, and that, if arrangements with the mortgagees could not be perfected, the agreement should be void, and the broker on whom the duty lay to do so failed to procure the agreement by the construction mortgagees to take new mortgages, the seller was not liable to the buyer for refusal to con vey. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1036-1038; Dec. Dig. 345.] [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1281, 1282; Dec. Dig. 205.] APPEAL AND ERROR 853-CONSTRUCTION OF CONTRACT-RULING UNEXCEPTED TO. Where the trial judge ruled as to the true construction of the written agreement in suit, and no exception was taken to the ruling, the trial judge must be taken as true for purposes construction placed upon the agreement by the of the case on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1524, 3405; Dec. Dig. 853.] 5. EVIDENCE 413-PAROL EVIDENCE AFFECTING WRITING. In suit for refusal to convey realty, where, by the contract of sale, a certain amount was to belong to the seller, testimony of the broker as to what instructions were given him about disposing of the amount when he was given instructions to see construction mortgagees whom he was to endeavor to persuade to take new mortgages was incompetent as varying a writing. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1855-1857, 1859, 1860; Dec. Dig. 413.] 6. STIPULATIONS 14(5) TRIAL AGREE MENT-CONSTRUCTION-EVIDENCE. In consolidated actions by a buyer of realty for refusal to convey, and by the broker for commission, where there was a trial agreement that both plaintiffs were entitled to recover, or construction of the agreement was that, if de that neither was entitled to recover, the proper fendant seller was bound to convey to plaintiff buyer, plaintiff broker had earned a commission, and so was entitled to recover in the second action, and that, on the other hand, if plaintiff buyer was not entitled to a conveyance from defendant seller, plaintiff broker was not entitled to a commission, and so was not entitled to recover in the second action, so that, though evidence of oral instructions given by the seller to the broker, before the written agreement between the buyer and seller was made, would have been competent in the action brought by the broker against the seller, it was rendered incompetent by the agreement. [Ed. Note. For other cases, see Stipulations, Cent. Dig. § 29; Dec. Dig. 14(5).] 7. EVIDENCE 424-PAROL EVIDENCE AFFECTING WRITING-ACTION BY ONE NOT A PARTY TO AGREEMENT. In a realty broker's action for commission against the seller of land, the broker's evidence of oral instructions, given him by the seller be fore the written agreement between the seller and the buyer of the land was made, and contrary to such agreement, is competent. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 1966-1968; Dec. Dig. 424.] 8. BROKERS 85(6)—Vendor AND PURCHASER 350-MATERIALITY OF EVIDENCE. Where a contract for the sale of realty pro- In consolidated actions by a buyer of realty vided that the broker should not be entitled to for refusal to convey, and by a broker for com 2. BROKERS 49(1)-RIGHT TO COMMISSION -PERFORMANCE OF CONTRACT. mission, where the broker's failure to perfect | and three new mortgages given them as their an arrangement with construction mortgagees, interests may appear totaling in amount $5,whereby they were to take new mortgages in place of those held, terminated the written agree- 550." The written agreement ended with this ment for sale of the land, it was incompetent provision: to prove by the broker what the construction mortgagees claimed to be the amount due them. [Ed. Note.-For other cases, see Brokers, Cent. Dig. 8 111; Dec. Dig. 85(6); Vendor and Purchaser, Cent. Dig. §§ 1043-1046; Dec. Dig. 350.] 9. VENDOR AND PURCHASER 79 CONSTRUCTION OF CONTRACT. The provision in a written agreement for the sale of realty that the agreement was to be void if arrangements with construction mortgagees whereby they should take new mortgages in place of those they held "could not be perfected" must be construed to mean if the arrangements with the construction mortgagees "are not perfected." [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 7, 8, 127-131; Dec. Dig. 79.] Exceptions from Superior Court, Worcester County; Wm. C. Wait, Judge. "If said installments (by which the new sec ond mortgages amounting to $5,550 were to be paid) cannot be apportioned satisfactorily to Barnes and Wood, or if, however, said arrangements with said Barnes and Wood cannot be perfected, this agreement is to be void and of no effect and the deposit herein named is to be returned to party of second part. If said arrangements can be perfected, either party failing to carry out terms of this agreement shall forfeit to the other as liquidated damages the sum of two hundred dollars. If said arrangements and Wood, a broker's commission is not to be cannot be perfected as aforesaid with Barnes paid to Harry Rosenberg by party of the first part. If same are perfected, Rosenberg is to receive commission from party of the first part" -that is to say, from Edinberg. By the true construction of the written agreement the arrangements (by which Barnes and Wood were to take new second mortgages amounting to $5,550 in place of those then held by them) were to be made Actions by Imen Cohen and by Harry Rosenberg against David Edinberg. There was a finding for defendant in both cases, and by Rosenberg. It was expressly stipulated plaintiffs bring exceptions. Exceptions overruled. Amos T. Saunders, Simon G. Friedman, and Paul D. Howard, all of Worcester, for plaintiffs. Marvin M. Taylor and Marvin C. Taylor, both of Worcester, for defendant. LORING, J. The only questions in these two cases arise out of exceptions taken to the exclusion of evidence. The first action was brought by Cohen (the purchaser of the land) on the ground that Edinberg wrongfully refused to make a conveyance. The second was brought by Rosenberg to recover a broker's commission. in the written agreement that Rosenberg had to perfect those arrangements to earn his commission. Rosenberg was not a party to the written agreement, but as between Cohen and Edinberg, who were the parties to it, the arrangements were to be made by Rosenberg. Rosenberg undertook to make those arrangements, but failed in his attempt. He procured agreements from Barnes and Wood, but those agreements gave to Barnes and The cases were tried by a judge sitting Wood the $1,200 which by the terms of the without a jury. The facts found by him written agreement was to be received by Edwere in substance these: Cohen (the plain-inberg as part of the purchase money on tiff in the first action) made a written agree-making the conveyance. ment with Edinberg by which he agreed to buy and Edinberg agreed to sell to him three parcels of land. The land in question was subject to first mortgages amounting in the aggregate to $12,500. The purchase money was $19,250, to be paid as follows: $12,500 by Cohen assuming the first mortgages; $200 was paid to a third person as a deposit on the making of the contract; $1,000 (made up of $800 in cash and a note for $200) was to be paid on the delivery of the deed; the remaining $5,550 was to be paid by the pur-held by them and this same failure on Rosenchaser's notes amounting to that sum secured by second mortgages on the land conveyed to be paid in certain installments specified in the written agreement. At the date of the written agreement one Wood and one Barnes held construction mortgages on the land in question amounting in the aggregate on their face to $10,000. At that time there was due on these mortgages to Wood the sum of $3,500 "and a large sum the exact amount of which was not shown in evidence was due to Barnes." It was provided in the written agreement that arrangements were to be made with Wood and Barnes "whereby the mortgages held by them are to be discharged [1, 2] On these facts neither plaintiff was entitled to recover. The written agreement between Cohen and Edinberg had come to an end on Rosenberg's failure to procure an agreement by Barnes and Wood to take the new second mortgages in place of those then berg's part was fatal to his claim that he had earned a commission if the statement in the written agreement between Cohen and Edinberg was correct as to the conditions under which a commission was to be taken to have been earned by him. "These cases were tried together and it was agreed that both plaintiffs were entitled to recover or that neither was entitled to recover. At the trial Rosenberg was asked by his counsel what instructions were given him "about disposing of the cash when you were given instructions to see Mr. Barnes and Mr. Wood." Upon Rosenberg's stating that those instructions were given him before the writ For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ten agreement between Cohen and Edinberg |enberg and Edinberg. But the rights bewas signed the judge ruled that the question tween Rosenberg and Edinberg were dependwas not competent and an exception was takent upon the rights between Cohen and Eden by counsel who appeared for both plain- inberg. If Edinberg was bound to convey to tiffs. This is the first exception now before Cohen, Rosenberg had effected a sale and so us. Later on in the trial Rosenberg was ask- had earned a commission. The question ed whether during his talks with Wood and whether Edinberg was bound to convey to Barnes there was anything said with ref- Cohen and thus inferentially whether Rosenerence to the exact amount that was due to berg had earned a commission was to be tried either one of them. The witness answered out in the first action. It was true, there "Yes." To this question and answer counsel fore, that the right of Rosenberg to a comfor the defendant objected, the same were ex-mission depended upon the result of the first cluded by the court, and to that exclusion the action brought by Cohen against Edinberg. plaintiffs took an exception. This is the sec-In that sense it was true that "both plainond exception now before us. tiffs were entitled to recover or that neither was entitled to recover." We are of opinion that the trial agreement must be so construed, namely, to mean that: If Edinberg was bound to convey to Cohen, Rosenberg had earned a commission and so was entitled to recover in the second action; and that, on the other hand, if Cohen was not entitled to a conveyance from Edinberg, Rosenberg was not entitled to a commission and so was not entitled to recover in the second action. The result is that although evidence of oral instructions given by Edinberg to Rosenberg before the written agreement between Cohen and Edinberg was made would have been competent in the action brought by Rosenberg against Edinberg had it not been for the trial agreement they were rendered incompetent by force of that agreement. It follows that the first exception must be over [3] Both these exceptions might be disposed of on the ground that no statement was made of what the plaintiffs expected to prove. But we prefer to base our opinion on the fact that no matter what the plaintiffs expected to prove there is nothing in either exception. [4, 5] As we have already said, the $1,200 (made up of the $200 deposit, the $800 cash and the $200 note) by the terms of the written agreement between Cohen and Edinberg was to belong to Edinberg. It seems to be so on the true construction of the written agreement. But even if that were not so it must be taken to be the true construction of the written agreement for the purposes of this case. The judge who tried the case so ruled and no exception was taken to that ruling. It follows that this evidence was not competent in the first action brought by Cohen on the ground that Edinberg had wrong-ruled. fully refused to convey the land to him. At the trial and at the argument here both plaintiffs were represented by the same counsel. The learned counsel has contended that although originally this evidence was not competent in the action brought by Cohen against Edinberg it was competent in the action brought by Rosenberg against Edinberg; it was competent in that action because Rosenberg was not a party to the written agreement; and being competent in that action it enabled Cohen (if the jury believed it) to recover in the first action under the trial agreement "that both plaintiffs were entitled to recover or that neither was entitled to recover." [8, 9] Even if it be true that the claim made by Wood and Barnes as to the amount due to them is evidence of what that amount was, it was not competent to prove what they claimed that amount to be. Rosenberg had failed in securing from Barnes and Wood an arrangement by which they were to take new second mortgages amounting in the aggregate to $5,550 in place of those then held by them. He had failed because the agree ments procured by him from Barnes and Wood were not within the terms of the written agreement between Cohen and Edinberg. That brought the written agreement between Cohen and Edinberg to an end. Under these circumstances it was of no consequence what [6, 7] In other words the plaintiffs' con- the amounts were which were due under the tention is that the true construction of this mortgages which were then held by Barnes trial agreement is this: If Rosenberg by and Wood. The provision in the written reason of oral instructions given to him by agreement between Cohen and Edinberg that Edinberg before the written agreement be- that agreement is to be void and of no eftween Cohen and Edinberg was signed is fect "if said arrangements with said Barnes entitled to a commission the trade made be- and Wood could not be perfected" must be tween Cohen and Edinberg by the written construed to mean "if said arrangements agreement is to go for nothing and Edinberg with said Barnes and Wood are not perfectis to be liable to Cohen for not making a con- ed" and this construction of those words was veyance when by the written agreement be- assumed by the parties when they provided tween them he was not bound to make one. later on in the same written agreement that It is hard to believe that that is the true Rosenberg was to receive a commission "if construction of the trial agreement. The the same are perfected." It follows that rights between Cohen and Edinberg were the second exception must be overruled. In an action to recover a deficiency judgment against the mortgagor for the balance due after foreclosure and sale, evidence held insufficient to show that payment had been made out of insurance money to the mortgagee to apply on the indebtedness, where such insurance money had been expended on improvements on the property. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 863, 875, 913, 1366; Dec. Dig. 319(3).] plaintiff) subsequently sold it for a substantially larger sum; but that was after the property had been improved by the expenditure of more money. [3] 2. The contention that the plaintiff agreed to accept the property in payment of the note is not supported by the testimony of the defendant, and is expressly negatived by that of the plaintiff. Indeed the only consideration for the promise to cancel the note set up in the answer, is that "he would allow the plaintiff to foreclose his mortgage." This the plaintiff had a right to do, as the mortgage was overdue. 3. The foregoing disposes of the exceptions 2. MORTGAGES 360-FORECLOSURE BY EX-to the judge's charge, and of all the defendants' requests that were supported by evidence, and are now relied upon. Exceptions overruled. ERCISE OF Power of SALE-REGULARITY. Evidence examined, and held insufficient to show that foreclosure proceedings failed to comply with statutory requirements. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. 88 1075-1077; Dec. Dig. 360.] (225 Mass. 235) 3. MORTGAGES 319(3)-FORECLOSURE-DE-ARADALOU v. NEW YORK, N. H. & H. R. FICIENCY AND PERSONAL LIABILITY. Testimony that mortgagor agreed to allow mortgagee to foreclose in consideration of cancellation of the mortgage note held insufficient to show payment of the indebtedness in property, and thus defeat an action to recover the deficiency due after foreclosure and sale. [Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 863, 875, 913, 1366; Dec. Dig. 319(3).] Exceptions from Superior Court, Suffolk County; Jabez Fox, Judge. Action by William Williams against Samuel L. Sneirson. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled. Wm. A. Parker, of Boston, for plaintiff. Jacob W. Tushins, of Boston, for defendant. DeCOURCY, J. The note in suit, dated May 1, 1909, and signed by the defendant, was endorsed to the plaintiff in April, 1913. It was secured by a mortgage of real estate. This action was brought to recover the balance of the note after crediting the net proceeds of the foreclosure sale of June 30, 1913. The defences relied on were payment and an alleged oral agreement by the plaintiff to accept a deed of the property in payment of the note. CO. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 28, 1916.) 1. COURTS 97(5) DECISION OF FEDERAL SUPREME COURT-LIMITATION OF LIABILITY -INTERSTATE SHIPMENT. The decision of the United States Supreme Court that where alternate rates, clearly based upon valuation, are offered an interstate carrier may limit its liability by special contract is binding on other courts. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 332; Dec. Dig. 97(5).] 2. APPEAL AND ERROR 842(8)-REVIEWFINDINGS OF FACT. As the Supreme Judicial Court sitting in banc has no jurisdiction to determine facts in actions at law, but can only decide questions of law, and as the question whether the markings on paper are legible or indecipherable is a question of fact, the only question of law that can be presented where the original instrument is made a part of the exceptions is whether there was any evidence to support the finding. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3327; Dec. Dig. 842(8).] of an exhibit and the judge did. not make any Where no rulings were asked as to the effect finding respecting it, or decide whether it was legible or not, although made a part of the exceptions, it cannot affect the determination of the case presented on the record. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1322, 1323; Dec. Dig. 219(2).] 4. CARRIERS 53-CARRIAGE OF GOODS-BILL [1, 2] 1. There was no evidence to warrant a finding of payment of any sum other than the $650 credited on the note. The $112 received at some time from the insurance company, was applied in repairing the property. Assuming that the validity of the foreclosure OF LADING. proceedings is open to the defendant, it ap-carrier of interstate commerce by the Carmack The bill of lading required to be issued by a pears that they were in accordance with the Amendment to Hepburn Act (Act June 29, 1906, statutory requirements. There was no direct c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. evidence that the amount paid for the proper- Comp. St.. 1913, 88592]), constitutes the conty was inadequate; and the mortgage given tract between the shipper and the carrier. to the plaintiff by the purchaser at the fore- Cent. Dig. §§ 131, 165-167; Dec. Dig. 53.] [Ed. Note. For other cases, see Carriers, closure sale included the cost of contemplated improvements in addition to the purchase 5. CARRIERS 63-CARRIAGE OF GOODS-BILL OF LADING-SHIPPING ORDERS. price. There was evidence that Tower (who Where a contract, restricting defendant carapparently bought in the property for the rier's liability in the bill of lading limited the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |