78 Mass. 265 | Mass. | 1858
1. That the clause of the policy, “ other insurance permitted without notice until required,” relates to and covers insurance existing at the date of the policy, as well as insurance subsequently effected, is settled by the recent case of Kimball v. Howard Fire Ins. Co. 8 Gray, 33.
2. The evidence to show, as matter of fact, what structure was known as the Davenport & Co. car factory, was clearly competent. White v. Mutual Fire Assurance Co. 8 Gray, 566
3. The question as to the waiver of any defects in the plaintiff’s notice and proofs of loss is one of more difficulty. There can be no doubt that the conduct of the defendants would amount to a waiver, except for the last clause in the policy, by which it is “ agreed and declared by the parties aforesaid, that no condition, stipulation, covenant or clause hereinbefore contained shall be altered, annulled or waived, or any clause added to these presents, except by writing indorsed hereon or annexed hereto by the president or secretary, with their signatures affixed thereto.” There is a previous provision that in case of loss the money is “ to be paid within ninety days after notice, proof and adjustment thereof in conformity to the conditions annexed to the policy.” The provisions for notice and proofs of loss are contained in the twelfth of the by-laws. The entire by-laws are printed under the heading “ conditions of insurance.” The policy is declared to be made and accepted in reference to the conditions thereto annexed, which are made part of the policy. How far the provisions as to the form of the notice and proofs of loss, after a valid contract has been made and a loss taken place under it, can be regarded as conditions of the contract itself, it is not necessary to determine, nor whether their being classed under the designation of conditions of insurance could change the nature and purpose of the stipulations themselves ; for it seems to us that the question is not as to the provisions of the contract, but as to the performance of the provisions. The plaintiff is not seeking to set up a contract from which a material provision has been omitted by the oral consent of the officers of the company. The policy contained the usual provisions as to notice and proofs of loss. Upon the happening of the loss, the plaintiff sent to the defendants certain notices and proofs in pursuance of the requisition of the by-laws upon the subject. If the notices were defective, good faith on the part of the underwriters required them to give notice to the insured. If they failed to do oo, if they proceeded to negotiate with the plaintiff without adverting to the defects, if, still further, they put their refusal to
4. The questions made as to the application are of less difficulty. There is nothing in the policy or the conditions attached to it, which makes an application in wilting by the plaintiff essential to the validity of the contract. If the underwriters chose to issue a policy without such application, or with an application defective but true as far as it went, they must be held to have waived the want of the application.or its defects. Hall v. People's Ins. Co. 6 Gray, 185. Liberty Hall Association v. Housatonic Mutual Fire Ins. Co. 7 Gray, 261.
5. The court erred in instructing the jury that no abatement of the amount to be recovered of the defendants could be made on account of the Harmony and Lafarge policies, because those policies covered other property besides that covered by the defendants’ policy. We think those policies, though covering manufactured as well as unmanufactured stock, must sustain their proportion of the loss. The rule of adjustment will be this: Ascertain the stock covered by the policies at the +imp of
If the parties cannot agree upon the amount, or upon an assessor to fix it, the case must go to a new trial, limited to the question of damages only. Exceptions sustained.
