Childs v. Millville Mutual M. & F. Ins.

The opinion of the court was delivered by

This case shows that a controversy arose as to a claim of the plaintiff, for money paid upon the cancellation of policies in the defendant company. The parties disagreed as to the amount due the plaintiff. The plaintiff wrote the defendant to send him “ such an amount as you feel inclined, which shall be accepted in full satisfaction of my claims for returned premiums against your company.” The defendants sent in response the sum of $268.31, and this sum was retained by ,the plaintiff. This claim is precisely the one made at the former trial in this cause at the December Term, 1881. Exceptions taken at that trial were heard at the General Term of this court in 1882. It was then held that the correspondence disclosed an accord and *611■satisfaction. The facts shown upon this trial were precisely those contained in the former bill of exceptions. This court will not reverse or revise a former decision in the same cause. Stacy v. Vt. (Jen. R. R. Co., 32 Vt. 551; Sturges v. Knapp, 36 Vt. 439. The plaintiff at the trial below presented a claim that he did not make upon the former trial. In the yeai* 1880, he paid a loss under a policy issued by the defendant; the loss had been properly adjusted at the sum of $1,831. The plaintiff had no authority from the defendant to make the payment; he was under no obligation to make it; it was made without the knowledge or consent of the defendant. The defendant when informed of the payment made no objection thereto. The money was not paid at the defendant’s request express or implied; and there was no subsequent ratification of the payment. The most favorable construction that the plaintiff could ask to have put ■upon his acts, is to be held the equitable assignee of the claim evidenced by the policy and the adjustment of the loss under it. He could not, by simply paying the claim, make the defendant his debtor against its will. The plaintiff so being the owner of the policy and the claim under it, surrendered it to the defendant, duly receipted, receiving the amount he paid, and claiming no interest. He now insists upon a recovery of the interest from the time he paid the claim until the account was paid him by the defendant. Admitting that he was entitled to interest, we think the case within the principle laid down in Ellsworth v. Fogg, 35 Vt. 355; and Draper v. Hitt, 43 Vt. 439. The receipt of the money and surrender of the policy should be held a full discharge of the claim.

Judgment affirmed.