Associated Fish Products Co. v. Hussey

Per curiam. This action on the case is before us on report. The declaration contains five counts, the first three alleging that the defendant, an insurance broker, negligently failed to keep certain property of the plaintiff protected by insurance policies or binders as the defendant had agreed to do, that a fire resulted, and that, in consequence thereof and of such negligent failure of the defendant, the plaintiff suffered loss. The last two counts are to the same general effect, except that it is alleged that the defendant’s neglect with respect to the failure to insure was wilful and fraudulent. The plea was the general issue. Under the terms of a letter to the plaintiff’s president dated May 27, 1948, the defendant did bind this insurance. The defendant contends that these binders were cancelled by a telephone conversation, confirmed immediately by a letter from the defendant to the plaintiff’s president on July 8, 1948. The fire occurred July 17th following. The plaintiff’s president admits that he did talk with the defendant on July 8th and that the purpose of the conversation was to assure himself that the binders were in force and he denies that he ever received the letter of July 8th. The defendant’s testimony as to the purport of the conversation is diametrically opposed and he is emphatic in his statement that he wrote and mailed the letter. Whether the story of the plaintiff’s president is correct, or that of the defendant, is the only issue in the case, and that is a question of fact not of law. There is no issue of [389] law before this court and this case is not properly here on report. Apparently there is raised a simple issue of veracity between Mr. Wight, the president of the plaintiff, and the defendant. The triers of the facts who can see and hear the witnesses should decide this, not this court sitting as a court of law which has before it nothing but the printed record. The case should be remanded to be heard at nisi prius. McLean, Southard and Hunt, for plaintiff. Michael Pilot, Ernest L. Goodspeed, Sr., for defendant. Report discharged. Sitting: Murchie, C. J., Thaxter, Fellows, Merrill, Nulty, Williamson JJ.