Batcheller v. Commercial Union Assurance Co.

Holmes, J. A majority of the court are of opinion, that there was evidence for the jury that the school-house insured by the defendant was personal property as between the town of Sutton and the plaintiff Batchellei-, and belonged to the town. No one doubts that, if an agreement to that effect were proved, it would be effectual. Morris v. French, 106 Mass. 326. Howard v. Fessenden, 14 Allen, 124. Ham v. Kendall, 111 Mass. 297. Doty v. Gorham, 5 Pick. 487. Carpenter v. Walker, 140 Mass. 416. It appears by the report, that the school-house was built by Batcheller under a contract between him and the school district. The contract was made when it was still uncertain where the house would be built, and before Batcheller’s promise to give the land. It therefore must be construed without regard to the ownership of the land on which it was built, and the conclusions to be drawn from the expressions used in it are not restricted by evidence that they were used with reference to expectations then entertained as to the ownership of the land. By that contract Batcheller agreed, on February 28,1876, with the district “ for building for them a school-house,” and speaks -of it as “their school-house,” agrees to furnish material and to make and finish “a school-house for said district,” the compensation to be paid “ on the completion and acceptance of the school-house.” This was executed by Batcheller and the district, under seal. On March 16, 1876, it was voted on Batcheller’s advocacy to locate on this land. On April 26 of the same year Batcheller bought the land, it would seem while the schoolhouse was in process of building. The school-house seems to have been built in April and May. At all events, it was built in pursuance of the above contract. The foregoing facts, [501] coupled with the use of the building as a school by the town, and with Batcheller’s conduct as to the insurance on March 5, 1881, and at other meetings, are some evidence, at least, that, as between Batcheller and the town, the town owned the schoolhouse, and therefore, as it did not own the land, that the house was personal property. If the parties contemplated the result that the town should be owner in any event, it is not necessary that they should have contemplated specifically the legal machinery by which the result must be worked out. Bassett v. Daniels, 136 Mass. 547, 549. The case is not like those where a building is erected by a party having a bond for a deed of the land, as in Poor v. Oakman, 104 Mass. 309. In such cases there is nothing except the contemplation that the party building the house will acquire the land to show that it is contemplated that he is to own the house. The ownership of the house is wholly incident to the acquisition of the land. The question whether the plaintiff had an insurable interest by reason of possession or otherwise, even if the house was personal property, is not raised by the report. New trial granted.