312 Mass. 609

November 10, 1942 - December 29, 1942

Suffolk County


A verdict for the defendant rightly was ordered in an action on a fire insurance policy in the Massachusetts standard form where the plaintiff's sole contention was alleged invalidity of an award which purported to have been made by referees and the amount of which had been tendered to and refused by the plaintiff, but there was no evidence of such invalidity.

TWO ACTIONS OF CONTRACT. Writs in the Superior Court dated October 25, 1938.

The actions were originally by John Mulrey and Helen Mulrey; after her death the administrator of her estate was substituted for her.

The actions were tried together before Good, J. The plaintiffs' bill of exceptions recited that "upon motions of the defendants" the judge ordered a verdict for the defendant in each case; that the judge "ruled" that the plaintiffs were not entitled to recover; and that "the correctness of this ruling is the sole question raised" by the bill of exceptions.

P. A. Chapman, for the plaintiffs.

K. C. Parker, for the defendants.

COX, J. The consolidated bill of exceptions states that there was evidence that a building owned by the "plaintiffs" and insured against fire in the defendant companies, by Massachusetts standard form policies, was partially destroyed by fire while the policies were in full force and effect, and that thereafter, the parties failing to agree as to the amount of the loss, there was a reference to "three men chosen in accordance with provisions of the statute." The

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"referees thus chosen, after conducting hearings, made an award signed by a majority . . . only." Checks in the amount of the award were sent by the defendants to the plaintiffs, who returned them uncashed. "The plaintiffs at the trial took the position that the reference was invalid and the award not binding upon them." This "position" is asserted in the declarations, where it is alleged, among other things, that two of the referees were interested and prejudiced in favor of the defendants, and that the award was arrived at from improper motives. In each action the plaintiffs seek to recover the full amount of their loss, "regardless of the said award," on the ground that the award is not binding.

There is nothing in the bill of exceptions to support the allegations of the declarations that the award was invalid. All that appears is that an award was made and that the plaintiffs at the trial contended that it was invalid.

On this record the award was "conclusive and final upon the parties as to the amount of loss or damage." G. L. (Ter. Ed.) c. 175, Section 99. Doherty v. Phoenix Ins. Co. 224 Mass. 310, 315. Eaton v. Globe & Rutgers Fire Ins. Co. 227 Mass. 354, was an action to recover for loss and damage caused by fire. An award was made which the plaintiff declined to accept. It was held that the jury were correctly instructed that if they found the award to be valid, the plaintiff could not recover. (Page 366.)

The trial judge ruled that the plaintiffs were not entitled to recover. See Rule 71 of the Superior Court (1932); Field v. Hamm. 254 Mass. 268, 271. The bill of exceptions does not disclose that the plaintiffs excepted to this ruling, but if it be assumed that they did, we are of opinion that there was no error, and that a verdict for the defendant in each case was rightly ordered.

Exceptions overruled.