130 N.Y. 488 | NY | 1892
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But three of the many issues raised by the pleadings were contested at Circuit: (1) Did the defendant unreasonably, and in bad faith, refuse to agree on an impartial person to act as umpire? (2) Is the defendant estopped by its conduct from asserting as a defense the fact that plaintiff failed to serve proofs of loss within sixty days? (3) The value of the property destroyed. The only questions argued in this court arise on the first and second of these issues, and are presented by the motion for a nonsuit made at the close of the plaintiff's evidence, renewed at the close of the evidence, by a motion to direct a verdict for the defendant, and by the exceptions to the charge and refusals to charge. The original agreement naming the appraisers was drafted by the general agent of the defendant, was signed by him in behalf of the company, and by the plaintiff, on the 21st of October, 1887, and was delivered to the defendant's agent and taken away by him. December thirtieth, Langworthy produced the appraisal contract at Medina, erased Headley's name, and inserted Nixon's in its place. On this occasion Langworthy named three persons, any one of whom he would accept as umpire, all of whom were unknown to the plaintiff and Nixon, and they were unwilling to accept of either. Nixon selected several persons whom he was willing to accept, but the two appraisers separated without agreeing upon an umpire, and they never reached an agreement. Langworthy would not accept of any *495
person selected by Nixon, and Nixon would not of either of the three suggested by Langworthy. On the trial, considerable evidence was given tending to show that the persons selected by Langworthy had been frequently employed by insurers as appraisers and umpires, and it was insisted that the defendant, through its appraiser, Langworthy, refused to agree upon "a disinterested umpire." If this was true, the fact that an appraisal had not been made was not a defense to the action. (Uhrig v.Williamsburgh City Fire Ins. Co.,
Among other provisions contained in the policy, is a clause that the assured shall furnish proofs of loss to the insurer within sixty days after the fire, as is provided in lines 67 to 80 inclusive in the "Standard Fire Insurance Policy of the State of New York."
It is also prescribed by the Standard Policy: "This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required;" and it is now insisted that the defendant, not having waived in *496
writing the performance of the stipulation, that proofs of loss should be furnished in sixty days, that no recovery can be had on the policy. A party to a contract, containing a provision that it shall not be modified or changed except by a writing signed by him, may by conduct estop himself from enforcing the provision against a party who has acted in reliance upon the conduct, and so the acts of an agent, who possesses the power of the principal, or who has been held out by the principal to possess his power, in respect to the provision alleged to have been altered or changed, may also estop his principal. (Messelback
v. Norman,
It may be remarked in passing that no defense on the merits was presented to the jury, the payment of the policy being resisted solely on the grounds that an appraisement had not *497 been had, and formal proofs of loss had not been served within the time limited by the policy.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.