Gilligan v. Commercial Fire Insurance

The plaintiff insists, first, that the submission to appraisers was a waiver of a certain alleged defect in the proofs of loss. But the agreement was merely for appraisal of damages', and it expressly states that it is without reference to any other questions or matters of difference. There is no reason to give it a meaning which it expressly excludes.

Again, the plaintiff insists that there was a waiver by the retaining of the certificate some sixteen days. It appears that a certificate, signed by one Gibbs, was sent to the defendants about the ninth of May, to which they objected. Thereupon a certificate of one Rustedt was sent, and was received about May twenty-fifth. On the tenth of June the defendants wrote a letter to the plaintiff objecting that Rustedt was not a magistrate or notary nearest the place of the fire, and also making other objections. This letter was received in due course of mail, but no reply was made, or other certificate promised. I am unable to see that there was any waiver. The defendants expressly objected, and pointed out the objection. Doing this, they afforded the plaintiff an opportunity to correct or amend the alleged defect. He had *96lost nothing by their retaining the certificate sixteen days, unless, indeed, they should afterwards have refused to receive a certificate intended to obviate their objections. In O'Neil v. Buffalo Fire (3 N. Y., 128), the defendants did not point out the objection. In Turley v. North Am. Fire (25 Wend., 373), the agent of the company refused to return the proofs for amendment.

On the trial it appeared that Rustedt’s office was about twenty-five rods from the fire ; his residence further ; that Lloyd, a magistrate, had a place of business about eight rods from the fire ; Allen, about twelve, and Pitkin about fifteen. Plainly, then, Rustedt was not the nearest. Lloyd did no business as a justice ; Allen did no other business than that of justice (except his private affairs); Pitkin was a merchant, and did not do much business as a justice. The referee finds that other persons were nearer than Rustedt by not exceeding thirteen rods, but that no one had an office as magistrate or notary nearer than Rustedt.

The policy ends with a clause that it is made and accepted with reference to the foregoing terms and conditions, and one of these terms is that the insurer shall produce the certificate of a magistrate or notary nearest to the place of the fire. The policy is not distinguishable in this respect from that in Inman v. Western Fire (12 Wend., 452), where such a clause was held to be a condition precedent. And while it seems to me iniquitous for a company to insist on the letter of such a provision, I feel bound by that decision. The remedy is with the Legislature, who should prohibit the insertion of such conditions, and many others in common use, that are of no good except to defeat honest claims.

If such a clause had not been held to be a condition precedent, if it were held to be only an agreement on the part of the insured, then plainly the company would have suffered no loss by the breach of the agreement. For it is evidently of not the least consequence whether the notary lives ten rods or twenty from the fire. But the case above cited has made the performance of what is required in this clause a condition precedent to the recovery, and if it be, then I cannot say that it was performed in this case. The Turley Case does not apply, for the company threw obstacles in the way of the proper performance of the condition and the preparation of proper proofs. Nothing of the kind exists *97here. The company plainly stated their objection. The plaintiff neglected to amend the alleged defect.

I come to this conclusion with reluctance, but I am compelled to say that I think the judgment must be reversed, a new trial granted, the referee discharged, and that the costs abide the event.'

I concur in the conclusion reached by my brother LeaeNEd, that there was no waiver, of the objection urged against the certificate of the officer, Rustedt; which objection seems fatal to the plaintiff's right of recovery in this action. The production or delivery of a certificate, such as was called for by the policy, within the specified time, was a pre-requisite to the right of action. The parties so expressly agreed; and I am unable to see anything reprehensible in law or morals where a party insists upon all lawful conditions imposed by a contract to which both gave their free assent. Parties make contracts for themselves, and, in the absence of fraud or mistake, it is right that due observance should be required of its lawful provisions. It does not lie with the court to relieve either because of an apparent hardship in the enforcement of terms or conditions which', it must be assumed in a case like the present, were deliberately considered and expressly agreed upon.

I am further of the opinion that here was also a breach of warranty oh the part of the plaintiff, as regards the diagram showing the surroundings of the insured property. This was made by the plaintiff or his agent for reference by the company, and was accepted by it as explanatory of the risk to be assumed on the delivery of the policy. The diagram was more than imperfect. It was, in point of fact, actually erroneous in its delineation of surrounding buildings. * It was provided in the policy that if a survey, plan or description of the property insured should be referred to in it, such survey, plan or description should be considered a part of the contract and a warranty by the assured; and further, that any false representation by the assured of the condition or situation of the property, or any omission to make known every fact material to the risk, should render the policy void. The diagram was referred to in the body of the policy as *98“Diagram No. 134,767, on file in tbe office.” This was tbe imperfect and erroneous diagram produced. It is only necessary to compare this witb tbe accurate plan or diagram established by tbe proof to see tbe very important and material difference between them. As above stated, Diagram No. 134,767, referred to in tbe policy, was both imperfect and erroneous. It was, in point of fact, a false representation of the property insured, as regards other buildings thereon delineated. There was an omission to designate thereon other buildings situated in its immediate vicinity. This was an “omission” to make known facts material to tbe risk. For these reasons the policy was inoperative and void by the express stipulation of the contracting parties.

The judgment must be reversed and reference discharged, costs to abide the event.

Judgment reversed, new trial granted, referee discharged, costs to abide event.