The consent of the directors to the assignment of the policy by Pettigrew to the plaintiff constituted a new and original contract and promise to indemnify him according to the terms of the policy; and this new promise rested upon a sufficient consideration, namely, the exemption of the company from any further liability to Pettigrew, and the premiums already paid and secured for the unexpired term which the policy had to run. Wilson v. Hill, 3 Met. 66. It can hardly be claimed that, by any fair construction of the policy, the insurance was only on such furniture and clothing as was in the house, and on such hay and grain as was in the barns, at the time it was executed, so that no change therein could be made by Pettigrew. Common experience teaches that such changes must of necessity be constantly taking place; and the contract was made in view of that fact. The language used shows plainly enough that such changes were in contemplation of the parties. The insurance is not "on the furniture and clothing now therein," but, in general terms, "on furniture and clothing therein."
It is too clear for argument that the policy would cover other furniture and clothing with which Pettigrew might replace worn out clothing and furniture that was in the house at the time it was made, or any furniture he might have therein to the amount of the insurance during the term.
It follows, conclusively as it seems to me, that, when the defendants entered into the new contract with the plaintiff, identical in its terms because evidenced by the same identical instrument, the rights of the plaintiff under that contract must be the same as were those of Pettigrew. That being so, it was as much an insurance of his furniture and clothing as it was of the furniture and clothing of Pettigrew.
SMITH, J. In general, at common law, where one party assigns his interest in a contract, and the other party agrees to the assignment, this constitutes a new contract between the assignee and such other original party, the terms of the original contract regulating those of the new contract. Fogg v. Insurance Company, 10 Cush. 337.
The defendants agreed to insure Pettigrew, his heirs and assigns, "on his buildings, and other property situated in Claremont," c. Pettigrew, during the existence of the policy, sold the buildings to the plaintiff, and assigned to him the contract of insurance, and all the rights and privileges to which he was entitled by virtue thereof, and then surrendered to the plaintiff the possession of the buildings, removing his clothing and furniture. Cummings thereupon commenced to occupy the premises with his own furniture and clothing. The defendants assented to this assignment, and thereby entered into a *Page 462 new contract with the plaintiff, the terms of which were regulated and fixed by those of the original contract, — that is, they agreed to insure him "on his buildings and other property situated in Claremont, c., — that is to say, on dwelling-house, woodshed, and carriage-house, $500; on furniture and clothing therein, $200," c. This undertaking is not binding because the policy is incident to the property insured, but because it is a new contract. Wilson v. Hill, 3 Met. 66. The defendants were paid for insuring the full sum of $1,425 for five years, and their contract was to pay that sum to Pettigrew's assigns as well as to him. When they consented to the assignment, they agreed to insure Cummings the same as they had Pettigrew: they in fact substituted the former for the latter, and agreed that the policy would represent to him just what it had to Pettigrew. No specific furniture and clothing was named in the policy, beyond that it was such furniture and clothing of the insured as he might have in the house for the time being. If Pettigrew had not assigned the policy, and had remained in the occupation of the premises, he might have substituted other furniture for that originally insured, and no one would have questioned that it would have been covered by the policy. Any other construction would practically prevent the insurance of provisions, clothing, and family stores, as well as stocks of goods, and such property as is worn out, consumed, or otherwise changed several times during the term of a policy. If Pettigrew then could have replaced the furniture and clothing originally insured, with other property of similar character and value, without affecting his rights under the policy, there does not seem to be any reason why Cummings might not have done the same thing.
The contract was to insure him (Cummings) on his furniture and clothing, and it could make no difference with the defendants whether he procured his furniture of Pettigrew or of some one else. The risk was not increased, nor was it in any respect different; and, besides, there was a good consideration for this new undertaking. Cummings purchased the real estate and became the assignee of the whole policy; and having become assignee of the whole policy, and having become substituted, with the consent of the defendants, for Pettigrew, I think he is entitled to all the benefits that his assignor could claim under the policy, and could do whatever he could do. It must follow, then, that by the new contract between these parties the defendants insured the plaintiff's furniture and clothing, and consequently
The plaintiff is entitled to judgment, according to the finding of the court below. *Page 463