The motion to nonsuit the Plaintiff was based upon several grounds. Grave questions are presented, upon many positions urged by the parties. I shall consider one only, which in my view of it is sufficient to decide the case.
The action wTas upon a policy of insurance to the amount of $4,000 upon the Plaintiff’s “brick Franklin House Block, in thе village of Canandaigua. ” By the terms of the policy, the Defendants undertook “ to make good to the insured ” his loss to the amount *28 mentioned. By another clause, it was agreed that “ the loss or damage was to be estimated according to the true and actual cash value of the property, and to be paid within sixty dаys after due notice, and proof thereof, made by the assured, in conformity to the conditions annexed to the policy.” It was further provided, that the policy was made and accepted in reference to the terms and conditions thereunto annexed, “ which are to be used and resorted to, in order to еxplain the rights and obligations of the parties, in all cases not herein otherwise specially provided for.” Humber ten of the conditions provided, that “ in case of any loss or damage to the property insured, it shall be optional with the company to replace the articles lost or damaged, with others of the same kind and quality, and to rebuild or to repair the building, or buildings, within a reasonable time, giving notice of their intention to do so, within thirty days after having received the preliminary proofs of loss, required by the ninth article of these conditions.”
Immediately after the occurrence of the loss, without giving the Defendants an opportunity to exercise the option afforded by this provision, the Plaintiff laid his foundation, and proceeded in the erection of a new and diffei’ent kind of building from the one destroyed. Within the thirty days, the Defendants did give notice that they should avail themselves of this option, which reserved to them the right of rebuilding the structure which had been destroyеd. The Plaintiff refused to permit them to rebuild, and proceeded in the completion of the building he had himself commenced.
In the recent case of Morrell
v.
The Irving Fire Insurance Company (
Applying to the present case the reasoning there put forth, we have this result — that, after the giving of notice by the Defendants that they would avail themselves of their rights under the tenth condition of the policy, they ceased to be insurers, and their liability was no longer measured by the policy, but they became parties to a contract, by which they agreed to erect for the Plaintiff a building substantially like that destroyed, and for which the consideration had been paid to them in advance.
Upon such a contract, it would be quite plain, that the Plaintiff could recover nothing from the Defendants, as damages for non-performance, when he had himself refused to permit the erection of the building by the Defendants. To this view of the case the Plaintiff makes various objections, some of which Iwill now consider.
The Plaintiff argues that the tenth condition is not a part of the policy, but is only to be resorted to for explanation of obscurity, or ambiguity, in the policy itself; that there is no obscurity in the clause respecting the terms of payment, where it is provided that the same is to be paid in cash, within sixty days after notice of the loss ; and that the terms of the tenth condition are inapplicable to the case before us.
I understand the provisions of the policy, and the terms of the condition, to constitute together one instrument, and I see no conflict between them. The substance of the whole agreement is an undertaking to indemnify the Plaintiff against loss by fire to the extent of $4,000, upon the property designated. This amount, if needed for indemnity, the Defendants agree to pay to the Plaintiff, and they reserve tо themselves the right to pay it in money, or by the erection of another building. They do not agree, in the body of the policy, to pay the amount in cash, or in money even, but simply to pay. Standing alone, no doubt this would mean a payment in money, but it cannot be deemed to create a conflict between the poliсy and the condition. The provisions are entirely in harmony (Tolman
v.
The Manufacturers’
*30
Insurance Company,
Again, it is claimed by the Plaintiff, that the refusal to permit the Defendants to rebuild, subjects the Plaintiff to the loss of interest only, and that he cannot thereby be deprived of all remedy whatever. In the case of a tender in payment of an admitted debt, this view would be correct. This is, however, a building contract simply. Upon the case of Morrell v. Irving Insurance Company, it is as if there had never been an insurance between the parties, or any loss of a building by fire, but the Plaintiff, being the owner of the ground, had received a contract from the Defendants, to erect thereon a building, like the Franklin Hotel, and had paid them $4,000, as the consideration therefor. The case has nоne of the elements of a tender. It is a contract to build simply, and no default can attach to the proposed builder, nor can damages be recovered from him, so long as he is ready and able to perform the work on his part. If this rule subjects *31 the Plaintiff to a loss, it results from his own acts. If he refused to accept satisfaction in the mode provided by the contract, and put it out of the power of the Defendants so to perform, it is not the fault of the Defendants. The Plaintiff alone is responsible for the result.
It is further claimed, that no injury can accrue to the Defendants in compelling them to pay the amount of the insurance money, provided the Plaintiff is allowed to show, on the trial, that they could not have rebuilt for less than that amount, and thus have the damages reduced to the smallest sum. Such was not the contract of the parties, and the evidence in the present case shows the fallacy of the argument. The Plaintiff claimed, and proved, thаt the buildings burned were worth $20,000. The Defendants proved, or offered to prove, that they had entered into a contract, with responsible mechanics, to replace them for the sum of $10,000. Which of these statements was correct, or was the truth to be found at an intermediate point ? As claimed by the Plaintiff, this question would be answеred by the jury. If the Defendants are correct in their construction of the contract, they could answer the question themselves. They preferred to settle the question in their own manner, by rebuilding, to leaving it to the jury. Such was the agreement between the parties, and it wras to guard against over-estimates, and the hazard of a jury triаl, where the sympathies might be in favor of their own friends, who had met with misfortune, and against a non-resident, or a rich corporation, that this provision was probably inserted. Whatever may have been the cause of its insertion, it is there,’ and forms a part of the contract; and when claimed, the Defendants are entitled to have it enforced. This argument, in effect, destroys the condition. In no event is the insured entitled to recover more than the cash value of the property; and to say that the insurer is not entitled to rebuild, under the condition, if the insured shall only call on him for the cash value, or the cost of rebuilding, as found by a jury, is simply to annul the condition number ten.
It is said, also, that, regarding the policy and the election under *32 it as a building contract, it is so indefinite and uncertain that it cannot be enforced. If the Plaintiff had accepted the offer, this question might have arisen. It is now a sufficient answer to it, that the Plaintiff positively refused to the Defendants all rights in any form, under the conditiоn referred to, and proceeded in his own building arrangements. I do not, however, consider the objection a formidable one. The Plaintiff’s hotel building was destroyed by fire, and the Defendants contract to replace the same. This involves an agreement to erect a building of the same general character, аs to materials, size, and form, as the one destroyed, and within a reasonable time. This would be sufficiently definite to answer the requirements of the law. In practice there would be no difficulty. Negotiation and mutual self-interest would prescribe the details, and accommodate the building to the wishes of the owner.
I see no roоm for raising a question of the good faith of the offer to rebuild. It was a question of contract simply. The Defendants made the offer, and it was within the terms of the agreement. No question of motive or good faith can arise. It is a simple exercise of a right given by the terms of the contract. The notice of election wаs served by the agent of the company, and was signed by their vice-president, Wilmarth; and has throughout been adopted and acted upon by the Defendants, and has been set up as their defence in this action. No question was made of the authority, at the time of serving the notice, and the Plaintiff based his refusal to accеpt the offer, on other grounds. No objection was made at the trial to Mr. Wilmarth’s authority to give the notice. That seems to have been assumed, while the right of Mr. Salisbury to make the service of the notice was contested. There was no ruling, and no exception taken, at the trial, on this branch of the case, and it cаnnot now be presented.
I am of the opinion that the refusal of the Plaintiff to allow the Defendants to rebuild when they had, in due time, given notice of their election so to do, and his proceeding himself to erect a building on the same premises, justified the nonsuit, and that the judgment should be affirmed.
The first question I shall consider to the policy, giving the Defendant the right, in case of loss or damage to the property insured, to rebuild or repair the loss, making the building the same as before, by giving notice of its intention so to do in thirty days after service of proof of loss, and prosecuting and completing the work in a reasonable time, is valid. The counsel for the Plaintiff insists that it is not, for the reason, among others, that the Defendant had no power by its charter to enter into building contracts. It is a sufficient answer to this objection, that no such question was raised upon the trial. He further insists that it is not, for the reason that the policy itself contains a clause that, in case of loss, the Defendаnt shall pay the same in sixty days after service of the proof thereof; and insists that the option given by the condition, being inconsistent with this clause, must be held inoperative. This view is rendered somewhat plausible, from the fact that the clause in the policy, referring to the conditions, provides that they shall be resorted to in оrder to explain the rights and obligations of the parties in all cases not therein otherwise specially provided for. If the option given by the condition is really inconsistent with the provision of the policy piaking the loss payable in sixty days after service of proofs, it would follow, I. think, that the condition, in this respect, is nоt applicable. But is the condition inconsistent ? ■ The policy provides for payment in sixty days after service of proof of loss. This would be payment in cash. The option gives the right to satisfy the loss by reconstructing, or.repairing the building insured, if the Defendant so elected. There is no such contradiction in these modes of mаking satisfaction as is contended for. It simply provides two- modes for satisfying the obligation of the Defendant, at its election, and the right should be preserved to the Defendant, unless there is a plain repugnancy; and, in that event, the option in the condition should be held void. The provision in the policy for payment in sixty days, is not repugnant to the condition. That would be operative, and control the rights of the parties, in case the Defendant did not avail itself of *34 the right to rebuild by its election and service of notice thereof in thirty days from service of proof of loss. In case the Defendant did not elect to rebuild, as provided in the condition, the sum insured, in the absence of provision in the policy, would have been payable in cash, in thirty days after service of proof of loss. The only effect of the provision in such event was, to give the Defendant thirty days additional time for payment of the loss. While the right of election as to the mode of making satisfaction continued, the Defendant, of course, could not be called on for payment. The case shows that the Defendant did, within the thirty days, elect to rebuild, and served notice thereof upon the assured, and that he refused to permit them to rebuild. As to these facts there was no controversy upon the trial.
The counsеl for the Plaintiff insists that it did not appear that the officer of the Defendant, signing the notice, was authorized by the company — that the assured objected on this ground, at the time of the service of the notice. I think proof of authority should have been furnished, but no such objection was made. Upon the trial, it appeared that the Defendant recognized the authority of the officer, and approved his act. This, I think, was sufficient.
The counsel further insists that, although the Defendant had the right of rebuilding, yet being indebted to the assured to the amount of the insurance, the offer by the Defendant to rebuild, and the refusal by Beals, the assured, to permit it, did not discharge the debt, but only gave the right to Defendant to recover its damages. In other words, he insists that the Defendant is still liable to pay what it would cost it to reconstruct the building. The answer to this position is, that after the Defendant had elected to rebuild, and served the notice upon the assured, it became bound to do this. It no longer had the right to pay the money. Its position was that of a contractor, who had received payment in advance. In such a case, it would hardly- be contended that a recovery could be had, when the contractor was ready and willing to perform, and performance was prevented by the other party. Upon а tender by a debtor of money, the law requires the tender to be kept good; consequently, the creditor *35 may still recover his money. It requires no such thing of a contractor, to build. If he is prepared, at the time, to perform, and the other party precludes him therefrom, the law does not require that he should be always ready. This would be unreasonable.
This disposes of the case, and an examination of the other questions would be superfluous. The judgment must be affirmed.
Affirmed.
JOEL TIFFANY, State Reporter.