Interpretation and Construction. Ejusdem Generis. Application

1916 Virginia law review  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. VIRGINIA LAW REVIEW VIRGINIA LAW REVIEW VIRGINIA LAW REVIEW icy to another, the assignee's right to recover is dependent upon the assignor's performance of his contract; for the contract is with the insured, and must be performed by him. State Mut. Fire Ins. Co. v. Roberts. 31 Pa. St. 438; Pupke v. Resolute Fire Ins. Co.. 17 Wis. 378, 84 Am. Dec. 754. This is true also where the policy contains a provision directing the loss to be paid to the mortgagee or other third person; for such a provision is collateral to the principal contract, and the person designated as payee is merely an appointee of the fund. Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. 391: Dailey v. Westchester Fire Ins. Co., 131 Mass. 173. And it seems that the right of a lienholder, e. g., a mortgagee or materialman, who procures a policy in the name of the owner and pays the premiums thereon would likewise be defeated by the owner's breach of a condition. Gillett v. Liverpool, etc., Ins. Co., 73 Wis. 203, 41 N. W. 78, 9 Am. St. Rep. 784; Sias v. Roger Williams Ins. Co., 8 Fed. 187. As to the effect on the rights of the payee of the addition of a standard mortgagee clause, the cases are in conflict. The federal courts and a few state courts still make the payee's right to recover dependent on the owner's performance of his contract, construing the mortgagee clause to apply only to cases where the insurer consented to some waiver or modification of the conditions of the policy. Delaware Ins. Co. v. Greer, 57 C. C. A. 188, 120 Fed. 916, 61 L. R. A. 137; Vancouver Nat'l Bank v. Law, etc., Ins. Co., 153 Fed. 440; Brecht v. Law, etc., Ins. Co., 160 Fed. 399, 18 L. R. A. (N. S.) 197; Franklin Ins. Co. v. Wolff, 23 Ind. App. 549, 54 N. E. 772. The weight of authority and the better reason seem to be in accord with the principal case in allowing the payee to recover regardless of any default on the part of the insured.
doi:10.2307/1063135 fatcat:idqwaqdnrre2vdkii7cxbyvwja