fire, and as above stated in the absence of any provision in the policy expressly excluding from the damages the part arising out of that condition, that part is not to be excluded, but is to be regarded as primarily the result of the fire, or as "loss or damage by fire." In Brady v. Northwestern Ins. Co. 11 Mich. 425, it was held that where an ordinance prevented the repair of a building which had been partially destroyed by fire the loss was total, although the cost of restoring the building to its original condition would have been much less than the amount of insurance. The case seems to have been elaborately argued, and the reasoning of the court by which the decision was supported seems to us to be sound. The same principle has been recognized in other jurisdictions. Monteleone v. Royal Ins. Co. 47 La. Ann. 1563. Hamburg-Bremen Ins. Co. v. Garlington, 66 Tex. 103. Larkin v. Glens Falls Ins. Co. 80 Minn. 527. These cases support the general proposition that where the law prohibits the repair of a building which has been partially destroyed by fire, in the absence of any express provision in the policy to the contrary, the loss is not measured by the sum required to restore the building to its condition before the fire, but it is total, less the value of the remaining materials for removal. Since the change in the building is caused solely by the fire, the difference in its value caused by that change is loss or damage by fire within the meaning of the policy, in the absence of anything therein to the contrary. The principle is the same whether its application results in a total loss, or in an increase of a partial loss, as in Pennsylvania Co. for Insurance v. Philadelphia Contributionship, 201 Penn. St. 497. It follows that in each of the cases except that against the Pawtucket Mutual Fire Insurance Company judgment is to be entered for the plaintiffs in accordance with the terms of the report.

The policy issued by the Pawtucket Mutual Fire Insurance Company is materially different from the other policies. It provides that in case of loss the loss or damage "shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality." There is also a provision that the insurer shall not be liable "beyond the actual value destroyed by fire, for loss occasioned by ordinance or law regulating construction or repair of buildings, or by inter

ruption of business, manufacturing processes or otherwise." The first is a specific clause expressly declaring that in no event shall the sum to be paid in cash exceed the cost of restoring the property to its original condition. The second clause specifically names the building laws. We think that these two clauses mutually strengthen each other, and that when construed together they modify the general rule as to the measure of the loss by fire in such a case as this, and that the fair construction of these two clauses taken together is that such portion of the damage caused by the change in the condition of the building as arises from the existence of the building laws, whether regarded as a condition or a cause, is not to be considered as a loss or damage by fire, but is to be excluded from consideration, and the loss is to be estimated as if there were no building laws affecting the situation.

It is urged by the plaintiffs that, this policy being different from the standard prescribed by our statutes and the difference not being indicated thereon as required by law, the differences are null and void and the policy is to be construed as though it were conformable to the standard; and in support of that proposition they have cited cases like Queen Ins. Co. v. Leslie, 47 Ohio St. 409, in which it is held that where a statute provides a certain rule for the interpretation of a policy the statute must be regarded as incorporated in the policy issued when the law is in force, and being so incorporated must prevail over such other provisions as are inconsistent with it. But such cases are not applicable here. The statute in force when this policy was issued did not provide how the policy should be interpreted. It provided, it is true, a standard form, stated in what way and to what extent the form might be modified, declared that no company should issue a different policy and that if it did it should be subject to a fine, but also declared that the policy should be binding upon the company. St. 1894, c. 522, §§ 60, 105. It does not provide any rule of interpretation of a policy issued contrary to law, nor does it say that the policy shall be void. On the contrary it fines the company for issuing the policy and declares it to be binding upon the company. Its legal effect is not changed. The illegal policy is not changed by law so as to conform to the legal standard. The insured may sue upon it, but it must be

construed as it reads. No statute is incorporated in it. The penalty suffered by the company is a fine, and not a liability to be held on a contract different from that made by it. It follows therefore that as to this one policy the amount recovered cannot exceed its part of the sum equal to an amount needed to restore the building to its original condition, and in this case judgment should be entered for the defendant. As to the other cases judgments should be entered for the plaintiffs in accordance with the report, and it is

So ordered.

HERBERT A. CHAPIN vs. MARY S. PIKE, administratrix, & another, trustee.

Middlesex. March 16, 1903. - September 17, 1903.

Present: KNOWLTON, C. J., LAThrop, Barker, HAMMOND, & LORfNG, JJ.

Assignment.

When a contract to do work for a city is assigned as a whole after a part performance, the assignment includes all sums due for work previously done under the contract which have been retained by the city to ensure performance

CONTRACT, on a judgment, against the administratrix of the surviving partner of the firm of Henry H. Pike and Son, the city of Waltham being summoned as trustee. Writ dated June 21, 1897.

The defendant was defaulted. The Superior Court made an order discharging the trustee, and the plaintiff appealed. One Benshimol mentioned by the court appeared as claimant.

H. H. Winslow, for the plaintiff.

J. L. Harvey, (R. M. Stark with him,) for the trustee.
M. M. Johnson, for the claimant.

LORING, J. This is an action brought by a creditor of the firm of H. H. Pike and Son to reach and apply in payment of a debt due from them the sum of $2,008.60, which has been found to be due under a contract between the city of Waltham and said firm of H. H. Pike and Son. This sum of $2,008.60 was found to be due in an action brought in the name of Pike against the city,

which was before this court in Pike v. Waltham, 168 Mass. 581. The facts found in Pike v. Waltham, 168 Mass. 581, were not fully disclosed in the case at bar. More than that, the case at bar has to be disposed of on the meagre facts as to the claimant's rights disclosed in the answer of the trustee. The record before us does not contain a claim made by the claimant which would have raised an issue of fact between him and the plaintiff. In the absence of such a claim, the question which arises is whether, on the facts disclosed in the answer of the trustee, the fund is due to the claimant. If it is he must be discharged. Fuller v. Storer, 111 Mass. 281, 282. Taylor v. Collins, 5 Gray, 50, note. Richards v. Stephenson, 99 Mass. 311.

From the answer of the trustee in this action it appears that in May, 1888, Pike and Son made a contract with the city of Waltham for the construction of a bridge, and that one Benshimol went surety on their bond for the performance of the work. It is stated in the answer of the trustee that it is "claimed" that Benshimol "carried the work forward and furnished materials after the death of " one partner and the physical disability of the other, and until the surviving partner was ordered to cease work by a written notice from the city. Apparently the Pikes ceased work on October 5, 1888, and more or less work was done by Benshimol until March 25, 1889, when the construction was taken out of the hands of the contractors under the contract by written notice and the work of completing the bridge was relet on April 15, 1889, to another contractor. On November 19, 1888, the surviving partner of H. H. Pike and Son made the following assignment to Benshimol: "Know all men that I, Henry H. Pike surviving partner of the firm of H. H. Pike & Son, lately consisting of myself and Henry E. Pike who has deceased, for valuable considerations proceeding to me from Joshua Benshimol, do hereby assign, transfer and set over unto said Benshimol the contract made in May, 1888, between said firm and the city of Waltham for the construction of the Prospect Street Bridge in said Waltham."

It appears that by the terms of the original contract between Pike and Son and the city, payments were to be made monthly on account of work done, fifteen per cent of the amount due therefor being retained until completion of the whole work.

The amount retained out of money due for work done prior to October 1, 1888, was $1,590.90, and the amount retained out of money due for work done after October 1 until the work was taken out of the hands of the contractors was $1,048.99. How the finding was arrived at that $2,008.60 is the amount due under the contract does not appear. But as it is less than the two sums mentioned above retained out of the monthly payments otherwise due, it is apparent that the whole $2,008.60 is made up of sums so retained. It appears that the amount retained at the date of the assignment was $1,686.57. The question presented is whether the assignment of the contract carries all sums due for work previously done under it but retained until completion to insure performance.

The plaintiff argues that it does not, because an assignment of money due under a contract is not an assignment of the contract, and cites Segee v. Downes, 143 Mass. 240, 241; Staples v. Somerville, 176 Mass. 237; Somers v. Keliher, 115 Mass. 165. The other case relied on by the plaintiff is a case where it was held that there was no assignment either of the contract or of money due under it. Keefe v. Flynn, 116 Mass. 563.

Of course that is true; of course it is true that an assignment of what is due or is to become due under a contract is not an assignment of both the duty of performing the contract and receiving payment therefor. By the very terms of that assignment the benefit of the payment is separated from the burden of performance. But where the contract as a whole is assigned there is no separation between the benefits and burdens. A contract is a single entity; and if it is assigned as an entity and the contract is fully executed except the payment of certain money earned under the contract, the assignee is entitled to it. Order discharging trustee affirmed.