The opinion
Holmes, C. J.
The first of these cases is the same case and comes here on the same agreed facts as that reported in 178 Mass. 575 . We do not understand on what ground the plaintiff undertakes to reargue what was decided when the case was here before, that she was not entitled to recover the face value of the policy. We pass that portion of the argument by, only remarking that there is nothing in the present case that makes of the new policy the same contract as the first, as matter of law. It did not purport to be so, and it has been decided by implication not to be. See further, Miles v. Connecticut Ins. Co. 147 U. S. 177 . The only question before us is that which was left open on the former occasion for further consideration, because it had not been argued; whether the plaintiff is entitled to judgment for the surrender value allowed by the terms of the policy when, as in this case, premiums have been paid for more than two years. We see no answer to this claim. The right to a paid up policy is given in the very case of default in paying further premiums and a forfeiture of rights under the policy as it stands. *345 If the plaintiff had had what she had a right to, the paid up policy would he payable now. Therefore the measure of damages is the sum that would have been paid on such a policy if issuéd, and the judgment of the Superior Court was right. Timayenis v. Union Ins. Co. 21 Fed. Rep. 223. National Ins. Co. v. Haley, 78 Maine, 268, 273. There is no nice question of pleading before us. The case is submitted on agreed facts, and, although the pleadings are referred to, when the case went back the question remaining was perfectly understood.
The second case is a suit by an assignee of the second policy issued by the defendant after the supposed surrender of the first. Weatherbee, the husband, assigned the policy to one Brown as security for money lent on the faith of it, and Brown assigned it to Forbes, as security for money lent at the same time by Forbes to Brown. Before accepting the assignment and lending the money, Forbes went to the company to inquire and was told that the policy was valid and could be assigned. The advance exceeded the amount of the finding on the policy. At the trial the defendant moved that the other plaintiff Weatherbee be required to interplead, on a petition filed under St. 1886, c. 281. This was refused and the defendant excepted. The only question argued for the defendant is that raised by this exception, with the additional contention that if the substitution of the second policy for the first was invalid, then the plaintiff has no remedy in the present action, which is a suit on the policy. The latter question is open under an exception to a refusal to rule that on all the evidence the .plaintiff could not recover. •
This very plainly is not a case for interpleader. The liability of the company is not an alternative liability to one plaintiff or the other. Its liability to the plaintiff Weatherbee is fixed by what we have said. Its liability to Forbes, if it exists, is not by way of displacing to that extent the claim of Weatherbee, but in addition to it on what is as to Forbes an independent contract. It is familiar that such a case may be. National Ins. Co. v. Pingrey, 141 Mass. 411, 414 . United Order of the Golden Gross v. Merrick, 163 Mass. 374, 375 . There is an ambiguity in the premise of the latter proposition which we have quoted from the defendant. The substitution of the second policy for the first may be invalid as to Weatherbee and yet valid as to *346 Forbes. And that-is what it is. Or rather as to Forbes there is no question of substitution. He is shown a document appearing on its face to be an.'independent contract of value on which money can be advanced — a document contemplating the well known possibility of its being assigned as property by a proviso that a copy of the assignment shall be given to the company. To make sure, he asks the defendant if it is all right, and is told that it is. The defendant assents to the assignment. The plaintiff then advances bis money in good faith. On these facts the judge has found for the plaintiff and we cannot say that he was wrong. There was at least some evidence for him to consider that the defendant had estopped itself from repudiating its contract as against Forbes, whatever might have been its rights when only the original parties were concerned. Continental National Bank v. National Bank of the Commonwealth, 50 N. Y. 575, 583 . Preston v. Mann, 25 Conn. 118 . Pilcher v. New York Ins. Co. 33 La. An. 322. We deal as usual only with the questions which have been argued.
Judgment affirmedexceptions overruled.