Page:Federal Reporter, 1st Series, Volume 8.djvu/203

BIAS i;. BOqiEB WILLIAMS INS. CO. XS^ �The only cases cited which assist in the least degree the plaintiff's contention in this respect are Chamherl.avi v. N. H, Ins. Co» 55. N. H. 249, and Poster v. Equitable Mut. Ins. Co. 2 Gray, 216. �In the former of these cases, the court, expressing a somewhat strong dissent from a class of decisions conceming mu tuai companies in which it had been beld that an action could not be maintained'in the name of the mortgagee unless he had -given a new note, decidgid that as against a stock company suca an action might be maintained when the mortgagee had paid the premium. The decision upon the merits holds the mortgagee bound by the acts of the mortgagor, though relieyable to some extent by statute. �In the second case, — the action by a mortgagee against a mutual insurance company who had assented to an assignment of a policy as security to a mortgage, and had taken from him a written agreement to pay all assessments which might be made upon the policy, — the court held that a new contract had, in effect, been made with the mort- gagee, and that he would no longer be bound by the acts of the mort- gagor, done without his knowlege and consent. This decision reached a very just resuit, by Teasoning which is not f ully developed ; but probably something in the nature of an estoppel was thougfat to have arisen. That case has been often cited in Massachusetts, but ' has as pften been held not to govern a case like the present.' For instance, where the mortgagee who had originally been insured agreed to a. change of the policy into the form now in question, upon the verbal assurance of the agent of the company that it would be equaily safe in all respects, the general rule was followed. Fitchburg Sav. Bankv. Amazon Ins. Co. 125 Mass. 431. �The general rule is fully established, and governs courts of equity, unless there has been fraud or mistake in framing the contract. It is often harsh in its operation, and is now modified by many of the best companies. In the absence of any such modification in this policy, I must hold, as I am sure Judge Shepley would have held, that there must be a new trial. ��� �