ARMSTRONG V. MUT. LIFE INS. CO.
others which have been tried in this court, and I am content, without going now into any discussion of the question, to adhere to the rule as above laid down. I think the conclusion I have reached is well supported by reason, by considerations of public policy, and by the following authorities: Railroad Go. v. Fort, 17 Wall. 557; Woods, Master & Servant, §§ 390-436, 438, 439; Cooley, Torts, 555; 2 Thomps. Neg. 976; Stoddard v. St. L. R. Go. 65 Mo. 514; Hough v. Railroad Go. 100 U. S. 213; Ross v. Railroad Go. 8 FED. REP. 544; Ry. Go. v. Bayfield, 37 Mich. 205; Thompson v. Wis. 602; [So C. 3 N. W. Rep. (N. S.) 579;J Flike v.Railroad Go. 53 N. 1. 553; Gorcoranv. Holbrook, 59 N. Y. 517; Schttltz v. Railroad 00. 48 Wis. 375; [So C. 4 N. W. Rep. 399.J The motion for a new trial must be overruled, and it is so ordered.
S. C.10 FED. REP. 711. See Hough V. Texas & P. R. Co., notes of cases,post.
V. MUT. LIFE
(Circuit Court, E. D. New York. May 19, 1882.)
A general assignment of all insurance policies, where the assignor has some which are assignable and some not, will not carry those not assignable, nor such as would be made void by assignment.
SAME-WHAT PASSES BY AsSIGNMENT-INSURANCE POLICY.
The general words of an assignment are restrained by the particular wOrQs creating the subject of the assignment. The rights acquired under an assignment of II life insurance policy cannot extend beyond the interest in the life of the assured, and if that interest is that of a creditor, it is limited by the amount of his probable debt; and where no debt is shown, nothing is shown to have plI.SSed to the assignee.
Herbert T. Ketcham, for plaintiff. Joseph H. Ghoate anq Prescott Hall Butler, for defendant. WHEELER, D. J. This is an action of assumpsit upon a policy of insurance issued by the defendant upon the life of John M. Armstrong, the plaintiff's intestate, and has now, after verdict for the plaintiff and before judgment, been heard upon a motion of the defendant for a new trial in review of questions of law. The policy was issued upon an application signed by Armstrong, and in its operative and material parts in question ran:
"The Mutual Life Insurance Company of New York, II< "'''' in consideration of the application for thiB policy of inBurance, '" '" ... which '" * '" every person accepting or acquiring any intereBt in thiB contract * '" '" warrantB '" '" * to be the only Btatements upon which thiB COlltract is made, and '" ... '" of the * '" '" at the date hereof, ... ... '" and of the payment ... '" '" to be made * ... '" during the of this contract, doeB promise to pay to John M. Armstrong, of Philadelphia, Pennsylvania, his assignB, on the eighth day of December, in the year 1897, the sum of $10,000, '" '" * at the office of the company in the city of New York, or, if he should die before that time, then to make said payment to his legal representatives. ... ... ... If any statement made in the application for this policy be in any respect untrue, the consi.deration of this contract shall be deemed to have failed, and the company shall be without liability under it. '" '" '" The contract between the parties hereto is completely set fOl'th in this policy, and the application therefor, taken together. '" '" '" If any claim be made under an aBBignment, proof of intereBt to the extent of th,eclaiDl will be required."
Armstrong executed an assignment of the policy to Benjamin Hunter and left it with the company, and both were delivered by the company to Hunter. Armstrong died; and from the evidence received and that offered it is to be taken that he died by the hand -of Hunter, who planned his death before the insurance, induced him to effect it and make the assignment, paid the first and only premium that was paid, and took his life for the purpose of obtaining the money on this and other policies. They were not related in any way, and no evidence was introduced or offered of any interest in fact which Hunter had in the life of Armstrong. The seconddefence set out in the defendant's pleadings alleges that Hunter, "being or pretending to be a creditor" of Armstrong, did so and so, and the defendant offered evidence to prove the facts set forth in that defence, without -offering to prove that he was a -creditor any more than that he pretended to be; and this was not nnderstood to be, and is not now understood to have been, any offer to prove any fact of indebtedness -or other interest. The defendant requested t,he court to instruct the jury that if the company made no contract with Armstrong, or if the real contract was between the company and Hunter, or if the policy was in fact made and issued for the benefit of Hunter, the plaintiff not recover. These instructions were not given, and no question was submitted to the jury upon those aspects of the case. The principal questions are whether the facts stated would defeat the plaintiff's recovery, and whether these instructions ought to have been given.
HUT. LIFE INS. 00.
There is no evidence in the case of any intent to defraud or want of good faith on the part of Armstrong, and none was offered to be shown, nor any claim made that there was. such. The misconduct and criminality relied upon for defence were wholly on the part of. Hunter, and Armstrong was only his victim. The first two oUhese instructions could not be given without submitting to the juryquestion$ of contradiction or variation of the policy, which would be a subversion.of one of the most important principles of the law of evidencerelat. ing to the effect of written contracts, that parol proof is not admissible to alter, contradict, enlarge, or vary them; and not only would violate the ordinary presumption of law that the stipulations of the parties are written down in such contracts as .finally settled. upon and intended, but also the express provisions of this contract that the. whole contract and· its inducing statements are contained ,in itself. The other request would submit the effect of the contract and assignment to the jury, when suc.h construction, when the faets to which the instruments apply are ascertained, is always for the court. The whole of this part of the case must depend upon the true legal effect of these contracts. The defendant promised Armstrong to· pay his legal representatives $10,000 if he should die before December 8, 1897. He did die before that day. The term "representatives" or "legal representatives" - which is the same thing, for none but legal would be intended-indicates the administrators. Wason v. Colburn, 99 Mass. 342. The plaintiff is the administrator in Pennsylvania, the place of the domicile, and in New York, the place of the contract, although some question was made about the effect of the letters in the latter place. She has brought this suit upon this contract, and upon these facts is entitled to recover, unless something further is shown to' defeat it. If he parted with his contract to Hunter, so that his life was insured to Hunter, and to Hunter only, from the issuing of the policy to the day named, it is plain that no one could recover for this death. Not Hunter, for he criminally caused the death, and could become entitled to nothing by his crime. Not the administratrix, for she would have nothing to recover upon, and could acquire nothing from Hunter, for he could confer no greater right than he had. The contract was with Armstrong, and ran to his representatives who would be included in him, so it was doubtless at his disposal. So the question is whether he did dispose of it to Hunter. The payment of the premium by Hunter would not make the insurance his. Triston v. Hardey, 14 Beav. 232; .Etna Life Ins. Co. v. France, 94 U.8.561.
The question fuust turn upon the construction of the written instruments. Choses in action were not assignable at common law, although for a valuable consideration paid they were assignable in equit;},. Bouv. Bac. Abr... D;" "Obligation, Aj" Winchester v. Hackley; 2 Cranch, 342. There is, however, no cause of action accrued upon a policy of life insurance until the death insured against happens. Still there is no question but that the accruing right may, with the consent of the insurer, be transferred, so that when it does accrue it will accrue to the assignee, and become a right of action in his favor. Nor but that before it accrues it may be so assigned as to make the assignee an appointee to receive the funds. Page v. Burnstine, 102 U. S. 664. Nor but that after it has accrued it may be assigned in equity like other rights of action not made negotiable in terms. These limitations do not apply to contracts made negotiable in terms; .like notes or bonds payable to the bearer or to the order of a payee named. These policies commonly run to some person, and his or her executors, administrators, and assigns. There are many cases in which they have been held to be assignable, but stress is laid upon that form. In NeuJ York Life Ins. 00. v. Flack, 8 Md. 341, (1 Bigelow, Ins. Cas. 146,) Le Grand, C. J., laid stress upon theiword "assigns." In Pomeroy v. Manhattan Life Ins. 00. 40 TIL 398, Walker, C. J. said: "The policy declares in terms that it is assignable. It provides for the payment of the money to the assured or to her assigns. So far, then, from such an instrument being prohibited, it is authorized by the terms of the policy." In Mutual Protection Ins. 00. v. Ha,milton, 5 Sneed, 269, McKinney, J., said: "By the terms of the policy the contract is with the assured, his personal representatives and assigns, and the promise in fact and in law is to pay the money to the personal representatives or the assignee, as the case may be. " And in Emerick v. Ooakley, 35 Md. 188, Grayson, J., said: "So far from an assignment being prohibited by the terms of this policy, the amount of the insurance is made payable to her and her assigns." In Koshkonong v. Burton, supreme court of the United States, Chicago Legal News, April 29, 1882, the expression of opinion whether the phrases payable to the order of some person, or payable to some person or his order, would in a statute include a contract payable to a railroad company or its assigns, was expressly waived in the opinion of the court by Mr. Justice Harlan. A general assignment of all insurance policies, where the assignor ha.s some which are assignable and some not, will not carry those
not assignable, nor such as would be made void by assignment. Lazarll,s v. COInJnonwealth Ins. Co. 19 Pick. 81. This assignment is to be looked at in the light of these principles. One branch of the contract ran to Armstrong and his assigns, the other to his representatives. One was by its terms assignable and the other not, and by general wQrds he assigned. The two expressions stand side by side in the instrument, so that their difference is apparent. According to these principles it would seem to follow that the assignment was intended to carry the branch made to be carried, and not the branch not so made; that the general words of the assignment are restrained by the particular words creating the subject of the assignment. The assignment could not rise higher than the· instruIDElnt assigned. And further, the instrument itself .limits. the rights to be passed to assignees. Such right could not exteI;ld beyond an interest in the life of the assured which could be proved; If ·the interest was that of a creditor, it would be limited by the amount of his probable debt. Cammackv. Lewis, 15 Wall. 643; Thatch v. Metropole Ins. Co. 11 FED. REP. 29. As no debt is shown no interest is shown, and nothing is shown to have passed to the assignee. What did not pass to the assignee was left in Armstrong, and accrued to his representative, the As Armstrong was innocj:lnt. no right of his, or of those chl,imingthrough him, would be cut bffbythe wickedness of-Hunter. . Other questions were saved by exceptions taken at the tdafand. allowed, but .they have not been argued or relied upon in thiEi hearing. . . The motion is overruled. Judgment is ordered upon the. verdict, and the stay of proceedings is vacated. .
Bee Warnock v. Davis, notes of cases, ante, 521.
SONSTmy 'V. KEELEY.
Where a person purchases a stock of goods in good fi;Lith, and without notice of fraud on the part of the vendor, and pays a part only of the consideration, and for the.balance of the consideration assumes the debts of the vendor held by and agrees to pay the same, such agreement is equivalent to payfide pW'Qhaser against the atment, aq.!l he is entitled to protection as tachiJ:ig creditors of the fraudulent to the full amount of the consideration. " " . ,.
LuBILITY":"'Rut.EOFDECISION'OF STATE OOURT.'
thfl, purchs,ser, llJ1der the rulings of the supreme court of Lbe is held liable for such ciebts, anc;l. th¥, court apply the rule bys'lCli supreme court if'it appears that by reason of ihe situation of the tiesalid of' tliesubject-matter that to hold otherwise would subject the party " ;todou.ble payment.
lJi sUCl;!, a.
Wilson' and ,f Rf)gers, for the motion. O.-K.DatJis;contra.: , , ' C.J. I have grave as to the propriety of attempting #>, apply to a ;ca.se at law the principle invoked by counsel for in this case. That principle is that where a vendee buys in good faith, and without notice of fraud on,ttte part of the vendor, and pays a part only of the consideration, agreeing to pay the remainderat a future d,a.y, if, before sll,cp remainder is paid, he receives notice of ,the vendor's fraud, he will be protected, only to the amount actually paid before notice. 'No doubt this is sound principle in equity; .but can it 'be. applied by a oourt of law? Can such a court rescind the contract pro tanto, and place, the parties in statu quo? If so, can it be done in a case like the present, in which no issue is made except upon the validity of the sale? If the sale was held void, so as to leave the title in Forbes, against whom the attachments were issued, judgment at law could be rendered for defendant; but where the sale is found to be valid and bona fide, so far as the vendee is concerned, and the title is vested in him, and where he has sold or disposed of a portion of the stock, and probably expended money and given time and laborin its care and preservation, it seems probable that only a court of equity would be competent to grant any relief to the creditors of the vendor. But it is not necessary to pass finally upon this question, as I am clearly of the opinion that the proof shows a payment by plaintiff of the whole of the purchase price. It is contended that the promise by plain.