Bucklin v. Powell

Smith, J.

The trustee insured $500 on the defendant’s dwelling-house, L, and wood-shed, $300 on his barn, and $200 on his hay and grain in the barn. The buildings were wholly destroyed. In the barn was hay estimated at three tons, and straw estimated at one ton, which were consumed. The real estate was mortgaged for $300. The value of the property destroyed is in controversy, and there is a dispute whether the property was over-insured. (See trustee’s deposition.) The trustee agreed to make good to the defendant his loss or damage by fire, not exceeding the sum insured, or the interest of the insured, to be estimated at its actual cash value. (See policy.) In McKean v. Turner, 45 N. H. 203, there was a similar state of facts. We then said, “To fix these values * * * must be matter of opinion and judgment, to be determined, not by any fixed pecuniary standard, but by an opinion formed from all the circumstances of the case, including location, state of repairs, the quality of the building, * * the prices of such property in the neighborhood, and generally all the circumstances which bear upon the question of value.” Assuming the rule, which distinguishes liquidated damages from those which are not, to be what the plaintiff claims it is, still we do not think the damages in the present case can be called liquidated. When evidence is received of all the elements which bear upon the question of the value of the property destroyed, it must still be largely matter of opinion and judgment what its value was, depending upon a variety of circumstances like those stated in the quotation'from McKean v. Turner.

It is argued with much force that the statute (G. L., c.

249, s.

22) is broad enough to include the case of unliquidated damages, because the word “rights” is a larger term than “credits,” and, according to the principles of. interpretation, must be given some effect. Whatever may be the difference between these two terms, the question whether either is broad enough to include the trustee’s liability for unliquidated damages cannot be said to be an open one. It having been settled in the negative by so many decisions, we do not feel at liberty to reexamine the question.

McKean v. *123 Turner, supra; Paul v. Paul, 10 N. H. 117;

Despatch Line v. Bellamy Co., 12 N. H. 205 ;

Foster v. Dudley, 30 N. H. 465;

Getchell v. Chase, 37 N. H. 109;

Rand v. Railroad, 40 N. H. 79;

Gove v. Varrell, 58 N. H. 78.

Whether the plaintiff could, by a bill of interpleader or other process, compel an adjudication of the amount if the defendant had a valid insurance claim against the trustee, and whether the plaintiff could be heard as an attaching creditor and party in interest in such a litigation, are questions not raised in this case. The plaintiff cannot hold by his attachment what the defendant could not recover of the trustee.

Forist v. Bellows, 59 N. H. 229. The liability of the trustee to the defendant, being denied, must be determined in some suit the result of whicli would be binding upon these three parties. Whether the plaintiff’s attachment could hold an amount hereafter decided to be due in such a suit is a question on which w'e express no opinion. It is settled by authority that as the case now stands the trustee cannot be charged.

Fxceptions overruled.

Allen, J., did not sit: the others concurred.