Tilman Farrow et al. versus The Commonwealth Insurance Company, 18 Pick. 53

Putnam J. delivered the opinion of the Court. The defendants object ; 1st, that the plaintiffs cannot maintain the action in their own names ; and if they can, then 2ndly, that the depositions of Willis Williams and others, ought to have been rejected.

The stress of the argument of the defendants’ counsel on the first point, was, that as the loss was by the terms of the policy to be paid to Copeland & Lovering, it necessarily restricted the action to be brought in their names ; that it was an express contract to pay Copeland & Lovering, and could not be varied without the consent of both parties ; and that the defendants have not consented or agreed to pay any other persons than Copeland & Lovering in case of loss.

Much reliance seems to be placed on the words “ payable to Copeland & Lovering.” But if the action were brought in the names of Copeland & Lovering, and they should recover judgment and execution, the money would be payable to them, and it would be for the use of the owners. The legal operation would in that case be just equivalent to the particular provision. And if those words were not inserted in the policy, it seems to be conceded that this action might well be maintained in the names of the owners. It does not appear that the defendants have any claim against Copeland & Lovering.

And the Court cannot presume the fact without evidence. Whether the defendants could be protected if such were the fact, is not the matter for our decision upon the facts before us in this suit. There are obvious reasons for the introduction of the clause in question. The insurance brokers might desire to have the loss paid to them to indemnify them for any advances for premium or otherwise, which they might have against the owners ; and the insurance company might desire to have that clause, to enable them to set off any legal claim which they might have against the insurance brokers.

And it would authorize them to pay the loss to the brokers without any power of attorney from the owners. But in the case at bar these reasons do not apply. For the brokers, Copeland & Lovering, have certified in writing, that they have delivered the policy to the plaintiffs to enable them to recover the loss ; and they say that they have no interest whatever in the suit. The action upon this policy might have been commenced in the names of the insurance brokers, for the benefit of the owners. Jefferson Ins. Co. v. Cotheal, 7 Wendell, 82; or it might be brought in the names of the plaintiffs, the owners.

Lazarus v. Commonwealth Ins. Co. 5 Pick. 76. “ If (says Buller

J) one person makes a promise to another for the benefit of a third, that third may maintain an action upon it.” 3 Bos. & Pul. 149, in notis. “ In policies of insurance, it is a common practice to bring your action either in the name of the party by whom the contract was made, or of the party for whom the contract was made.” Per Bayley J., Sargent v. Morris, 3 Barn. & Ald. 281. This matter seems, however, too clear to require the citation of authorities to support it. As this cause is situated, it seems to be very clear, that the plaintiffs may maintain the action in their own names.

The insurance brokers consent, and say they have nothing to do with the matter ; and the defendants do not show that they have any matter of set-off against the brokers, so that we all think that the objection upon this point cannot be sustained. And we think, that the objection made to the admission of the depositions of Williams and others .cannot prevail. The objection was, that it appeared that at the time of taking the depositions under the commission, an attorney was present on the part of the plaintiffs, and no one on the part of the defendants.

Such has unquestionably been the practice, and it is not to be disallowed, until the Court shall have provided, and given notice of some rule to the contrary. It is liable to all the observations which the defendants’ counsel have made. We have provided for the case in the rules which we have, made, and which will be published as soon as it may be convenient, after the revised code shall come into our hands But if the objection were tenable, we all think it should be considered as waived by the counsel for the defendants.

It existed, if ever, as early as December 1834, and was known to the counsel who then conducted the defence ; and it could not avail the defendants now, for the reason, that the counsel now engaged for the defendants, have recently had knowledge of the fact. But if the objection had been made in season, we could not have properly interfered before establishing and promulgating some rule of practice to the contrary. Let t íe judgment be entered for the plaintiffs, according to the verdict.