McCluskey v. Providence Washington Insurance

Soule, J. When the policy sued on was issued, Kinney, the person whom it purported to insure against loss, had no insurable interest in the property, and the policy was therefore void in her hands. The assignment of all her interest in the policy to the plaintiff, assented to by the defendant, did not create a new and independent contract of insurance between the parties to this action. The plaintiff took by the assignment only such rights as Kinney had under the policy. Bowditch Ins. Co. v. Winslow, 8 Gray, 38. Loring v. Manufacturers’ Ins. Co. 8 Gray, 28. Lawrence v. Holyoke Ins. Co. 11 Allen, 387. No new consideration passed to the defendant, and it did not make any new undertaking beyond that of substituting the plaintiff for Kinney in the existing contract. The case differs in this from the cases in which assignees of policies of mutual insurance companies have given new premium notes or assumed old ones, in consideration of the assent of the companies to the assignment; Foster v. Fquitable Ins. Co. 2 Gray, 216; and from the cases in which the company agrees in writing that the policy shall continue in force to the assignees. Tripp v. Pacific Ins. Co. 7 Allen, 230. The contract being in writing, paroi evidence to vary it was inadmissible. Barretts. Union Ins. Co. 7 Cush. 175. The action is based on the policy as it was written, and cannot be maintained by evidence that the contract was intended by the plaintiff or her assignor to be a different one. If there was a mistake in 309 the written contract, it cannot be rectified in this action. The learned judge, who tried the case in the Superior Court, erred in ruling that the facts testified to, as to the knowledge of the defendant and the payment of the money, and the representation that all had been done which was necessary to make the policy a good one, were evidence of an assent by the defendant that the policy, otherwise void, should be treated as a new and operative instrument in the hands of the plaintiff. Exceptions sustained.