In the next place, if it did so find, it might nevertheless be true that the assignment and the possession of the defendant under it operated to hinder the effect of the insolvency laws, and to prevent the property from coming to the hands of the plaintiff. Thirdly, the defendant's contention, if true, would justify a recovery under the third count, and no harm therefore could have been done to him if the court was wrong in holding that the plaintiff was entitled to recover on the first count. The defendant contends further that the insolvency proceedings and the trustee suit in New Hampshire relieve him from liability in this action. But it is enough to say of this contention that the court may have found that the proceedings and suit in New Hampshire were the result of collusion between the defendant and the parties instituting them, and were not instituted in good faith, and therefore were not entitled to any consideration. The defendant could not relieve himself from liability here by depositing the money in another jurisdiction. Exceptions overruled. Present: ALLEN, HOLMES, KNOWLTON, & MORTON, JJ. Promissory Note - Payment on Account - Statute of Frauds — Discharge in The intentional omission by a bankrupt of the name of the holder of his promissory note from the schedule of his creditors in proceedings in bankruptcy under U. S. Rev. Sts. §§ 4972-5132, and the payment during the proceedings of money on account of the note by the bankrupt to the creditor, who was ignorant of those proceedings prior to beginning an action on the note, do not prevent the bankrupt from setting up his discharge in bankruptcy as a bar. The payment did not constitute a new promise in writing within Pub. Sts. c. 78, § 3, and the fact that it may have been made with fraudulent intent does not avoid the discharge. CONTRACT, upon a promissory note. The case was submitted to the Superior Court, and, after judgment for the defendant rendered by Wardwell, J., to this court on appeal, upon agreed facts, in substance as follows. The defendant was the maker and the plaintiff the payee of the note, which was for one hundred dollars, and was dated December 6, 1870. The defendant filed a petition in bankruptcy in the United States District Court within and for the District of Massachusetts, under U. S. Rev. Sts. §§ 4972-5132, on July 26, 1873, which contained a schedule sworn to by the defendant, purporting to set forth a correct list of each and every one of his creditors, but from which he intentionally omitted the name of the plaintiff and any statement of the plaintiff's claim. On March 21, 1874, the defendant met the plaintiff, and paid him ten dollars on account of this note. On October 5, 1874, the defendant received his discharge in bankruptcy. The plaintiff did not know anything of the bankruptcy proceedings prior to the beginning of this action, which proceedings were regular and conformable to law, except so far as the failure of the defendant to make any return of the plaintiff's claim may be an irregularity. The statute of limitations had not run in favor of the defendant, by reason of his absence from the Commonwealth. If a discharge in bankruptcy under the foregoing circumstances was a valid defence, judgment was to be entered for the defendant; otherwise for the plaintiff. R. A. Hopkins, for the plaintiff. C. C. Paine, for the defendant. MORTON, J. The sole question in this case is whether the intentional omission of the plaintiff's name by the defendant from the schedule of his creditors in the bankruptcy proceedings, and the payment by the defendant to the plaintiff on the note during their pendency, prevents the defendant from setting up the discharge as a bar. The only respect in which this case differs from other cases in which a similar question has been considered by this court consists in the fact of the payment. See Fuller v. Pease, 144 Mass. 390; Kempton v. Saunders, 130 Mass. 236; Black v. Blazo, 117 Mass. 17; Way v. Howe, 108 Mass. 502. But that did not constitute a new promise in writing within Gen. Sts. c. 105, § 3, now Pub. Sts. c. 78, § 3, which were then in force. Jacobs v. Carpenter, 161 Mass. 16. And the fact that the payment may have been made with fraudulent intent does not avoid the discharge. Fuller v. Pease, 144 Mass. 390. Judgment for the defendant. WALTER O. FAULKNER & others vs. MANCHESTER FIRE Assurance COMPANY. Essex. March 4, 1898.-May 23, 1898. Present: ALLEN, HOLMES, KNOWLTON, & MORTON, JJ. Fire Insurance -Waiver · Cancellation of Policy - Effect of Non-disclosure to adverse Party of Principal's Instruction to Agent. A mistake in a proof of loss in regard to the number of the building will not affect the right of the assured to recover if the description of the building corresponded in other respects with that contained in the policy, and there is nothing to show that the insurer was misled or prejudiced by the error. Where at the trial of an action upon a policy of insurance against loss by fire it is found that the policy had been duly cancelled before the fire occurred, it is unnecessary to decide whether there is evidence tending to show that the defendant waived the provision in the policy in regard to arbitration in case the parties were unable to agree as to the amount of the loss. At the trial of an action upon a policy against loss by fire it appeared that the plaintiff applied for insurance to a broker, who had procured other insurance for him, and who in turn applied to an agent of the company, who issued and delivered a policy to the plaintiff; that subsequently, the defendant having requested its agent to cancel the policy, he went to the broker's office, and, the broker being absent, asked his clerk to get the policy and bring it to him for cancellation, which the clerk did before the fire occurred; that the plaintiff authorized the broker's clerk to deliver up the policy for cancellation, but not until after he should be insured in some other good company to the same amount, but such instructions were not disclosed to the defendant's agent. Held, that the policy was duly cancelled before the fire occurred, and that, the broker's clerk being the agent of the plaintiff, the instructions to him, which were not disclosed to the defendant's agent, could not affect the validity of the cancellation. CONTRACT, upon a policy of insurance against loss by fire on premises situated in Lynn. At the trial in the Superior Court, before Dunbar, J., there was evidence tending to show that in 1895 the plaintiffs applied for insurance upon their property, described in the policy as a "frame building occupied for the manufacture of potato chips, situate No. 6 Washington Street, Lynn, Mass.," to one Breed, an insurance broker, who had procured other insurance for them, and who made application therefor to one Madden, an authorized agent of the defendant in Lynn; that Madden issued a policy 171 349 d199 3537 of the defendant company, by which the property of the plaintiffs was insured for one year from July 24, 1895, and delivered it to Breed, who delivered it to the plaintiffs; that subsequently, but previous to the fire, which occurred on August 16, 1895, the defendant requested Madden to cancel the policy, and return it to the main office of the company; that he went to Breed's office, and, Breed being absent, asked his clerk, Miss Wentworth, to procure the policy from the plaintiffs and bring it to him for cancellation; that Miss Wentworth procured the policy from the plaintiffs, and, before the fire, left it at Madden's office, saying to the clerk to whom it was handed, "There is the policy Mr. Madden wants"; that the policy was cancelled on the day it was returned to Madden; that the plaintiffs authorized her to deliver up the policy for cancellation when they were covered in some other good company for the same amount and not before, but these instructions to her were not disclosed to Madden. There was further evidence tending to show that, seasonably after the fire, the plaintiffs rendered to the defendant proofs of loss, in which the building damaged by fire was described as a "frame building 21 stories high, occupied as a chip factory, situate No. 8 Washington St., Lynn, Mass."; that the parties having failed to agree as to the amount of the loss, they entered into an agreement of reference on October 22, 1895, according to the terms of the policy; that one referee was chosen by each of them; that these two referees accepted the appointment, appointed a third referee, and, the third referee having failed to accept his appointment or to act with the others, they proceeded to make an award; that the defendant's agent, in forwarding the award of the referees to the plaintiffs, stated that "it did not occur to me at the time of signing the agreement for submission that your policy had been cancelled, and that therefore there was no occasion for the Manchester Fire Assurance Company to enter into any reference for the determination of the amount of loss to your property. Aside from that, and if your policy had not been cancelled, the paper sent herewith is as the statute and your policy require an agreement for submission to three people. If there had been outstanding a valid policy of the Manchester Assurance Company at the date of your loss, the amount of loss-unless it had been agreed upon by the parties could only have been ascertained by reference to three referees, all of whom must take part in ascertaining the amount of the loss. It appears from this paper that the person selected by the other two to act as a third referee never accepted his appointment, he was never sworn, and did not act with the other two. Under these circumstances, any award of the other two is, of course, invalid. The company would therefore refuse to be bound by the same, even if your policy had not been cancelled before the loss." The judge directed the jury to return a verdict for the defendant, and reported the case for the determination of this court. If the direction was right, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the plaintiffs. W. H. Niles, for the plaintiffs. J. D. Bryant, for the defendant. MORTON, J. We think that the plaintiffs' right to recover was not affected by the mistake in the proof of loss in regard to the number of the building. The description of the building corresponded in other respects with that contained in the policy, and there is nothing to show that the defendant was misled or prejudiced by the error. It received the proof without objecting then, or during the subsequent negotiations, to the mistake in the number, and the jury might have found that it had waived any objection to the proof which it might have had on that ground. Blake v. Exchange Ins. Co. 12 Gray, 265. Graves v. Washington Ins. Co. 12 Allen, 391. Underhill v. Agawam Ins. Co. 6 Cush. 440. We do not find it necessary to consider whether there was evidence tending to show that the defendant waived the provision in the policy in regard to arbitration in case the parties were unable to agree as to the amount of loss, since we are of opinion that the policy was duly cancelled before the fire occurred. It is admitted that Madden was the agent of the defendant, and that as such agent he had authority to issue, deliver, and cancel the policy in suit; but the plaintiffs contend that, in procuring the policy and delivering it to him for cancellation, Miss Wentworth acted as his agent, and not as their agent. It was |
