No, you are not excused. A deal is a deal. The rule says if you promise to get something from an outsider, it's your job to get it done, and it's not a valid excuse if they refuse. The court pointed to other cases where people couldn't get insurance money because they failed to get a required note, even when they proved they tried their best. Because the person didn't provide the certificate before suing, they filed their lawsuit too early.

No, the person still needs the paper, even if they tried really hard to get it. We have a rule that says if you promise to get someone else to do something (like give you a special paper), you have to make it happen no matter what. It doesn't matter if the other person says no or if it's really hard to do. This rule is really important for insurance because we want everyone to follow the same rules. We've used this rule before in other cases about fire insurance, and we think it's fair because everyone agrees to these rules when they buy insurance. Even though it might seem unfair, we think it's important to stick to what the insurance paper says. So, the person can't get their insurance money yet, but if they can get the special paper later, they can try again to get their money.

<opinion type="majority">
<author id="b132-27">Loring, J.</author>
This case comes within the rule that where one engages for the act of a stranger he must procure the act to be done, and the refusal of the stranger, without the interference of the other party, is no excuse. That rule has been applied in this Commonwealth to the obligation of a person insured under <page-number citation-index="1" label="115">*115</page-number>a fire insurance policy to furnish to the fire insurance company a certificate, under the hand and seal of a magistrate, notary public, or commissioner of deeds, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and believes that the assured has, without fraud, sustained loss on the property insured to the amount certified. Johnson v. Phœnix Ins. Co. 112 Mass. 49. In that case it was held that the plaintiff was not excused from producing such certificate by showing that he applied to two magistrates for such a certificate in vain, and used his best efforts to procure it, accompanied by proof of the facts which were to be certified to. And this ease was confirmed in Dolliver v. St. Joseph Ins. Co. 131 Mass. 39, 44. To the same effect, see Columbia Ins. Co. v. Lawrence, 10 Pet. 507 ; Ætna Ins. Co. v. People’s Bank, 8 U. S. App. 554; Kelly v. Sun Fire Office, 141 Penn. St. 10, 20, 21 ; Daniels v. Equitable Ins. Co. 50 Conn. 551; Roumage v. Mechanics' Ins. Co. 1 Green, 110; Lane v. St. Paul Ins. Co. 50 Minn. 227; Home Ins. Co. v. Duke, 43 Ind. 418 ; Leadbetter v. Etna Ins. Co. 13 Maine, 265.
The defendant relies on the reference to Nolan v. Whitney, 88 N. Y. 648, in Beharrell v. Quimby, 162 Mass. 571, 575 ; and to O'Neill v. Massachusetts Benefit Association, 63 Hun, 292. The decision in O'Neill v. Massachusetts Benefit Association professes to be nothing more, and is nothing more, than the application to a right to recover “ sick benefits ” of the rule which is established in New York in case of building contracts. But Nolan v. Whitney is not law in this Commonwealth. On the contrary, it is settled here that in contracts for erecting buildings or doing other work where it is stipulated that the quantity or quality of the work to be done shall be determined by an engineer or architect whose decision shall be final, it is not open to either party to show, when the engineer or architect has passed upon the question submitted to him, that he was in error and ought not to have given a certificate when he in fact gave one; Flint v. Gibson, 106 Mass. 391; Robbins v. Clark, 129 Mass. 145 ; or that the certificate given by him was erroneous; Palmer v. Clark, 106 Mass. 373 ; and see White v. Middlesex Railroad, 135 Mass. 216, 220 ; New England Trust Co. v. Abbott, 162 Mass. 148. 154.
<page-number citation-index="1" label="116">*116</page-number>This action, therefore, was prematurely brought; but the plaintiff, on producing a sworn certificate, unless there is some objection to it not now disclosed, can bring a new writ and recover the sick benefits now sued for.

Judgment for the defendant affirmed.

</opinion>

No, a party is not excused from a contractual condition requiring the act of a third party merely because the third party refuses to perform. The court held that where one contracts to procure the act of a stranger, the stranger's refusal to act is not an excuse for non-performance. This principle is well-established in the Commonwealth, particularly in insurance cases like Johnson v. Phœnix Ins. Co., which held that a plaintiff's 'best efforts' to obtain a required magistrate's certificate were insufficient to excuse the failure to produce it. The court explicitly rejected the more lenient New York rule from Nolan v. Whitney, which is not law in Massachusetts. Because the plaintiff failed to produce the required certificate, a condition precedent to payment, the lawsuit was brought prematurely.

No. I hold that the plaintiff is not excused from providing the required certificate, even if they made their best efforts to obtain it. This case falls under the established rule that when one engages for the act of a stranger, they must procure the act to be done, and the refusal of the stranger, without interference from the other party, is no excuse. We have consistently applied this rule in our Commonwealth to fire insurance policies, specifically regarding the obligation to furnish a certificate from a magistrate, notary public, or commissioner of deeds. This requirement is not merely procedural but is a substantive condition of the insurance contract. We base our decision on the precedent set in Johnson v. Phœnix Ins. Co., where it was held that the plaintiff was not excused from producing such a certificate even after applying to two magistrates in vain and using their best efforts to procure it. This principle has been affirmed in subsequent cases such as Dolliver v. St. Joseph Ins. Co. and is consistent with rulings in other jurisdictions. We reject the plaintiff's reliance on cases from New York, as they do not align with our established jurisprudence on this matter. While we acknowledge that this ruling may seem harsh, it is necessary to maintain the integrity of insurance contracts and ensure that the agreed-upon terms are strictly followed. Therefore, we must conclude that this action was prematurely brought, as the plaintiff failed to fulfill a necessary condition of the insurance policy.

Audette v. L'Union St. Joseph

Premium Feature

Rule of Law:

Facts:

Procedural Posture:

Premium Content

Issue:

Opinions:

Majority - Loring, J.

Analysis: