55 N.J.L. 569 | N.J. | 1893
The opinion of the court was delivered by
The objection to evidence was properly overruled. The appraisement was not offered as one “ required by the provisions of the policy,” but as one made under the agreement of January 20th, 1892. This agreement was substituted for the appraisement clause of the policy, and, being somewhat different from it, in effect abrogated it. "Whether, therefore, the appraisement was such as the policy required,
The request to charge was legally refused, for it assumed as a fact what was not proved, viz., that the appraisers had not come together and disagreed. The uncontradicted testimony was that the appraisers had together examined the ■goods in question, and that their examination had resulted in a difference of opinion as to the damage done by the fire, ■Collins thinking the damage done was fifty per cent, of the face of the policies, Berriaii thinking it was more. Whether this difference of opinion was such a disagreement as would justify calling in the umpire might depend on circumstances. The court could not lawfully determine that, under all the ■evidence, the umpire had no authority to intervene, and therefore did not err in refusing to charge as requested.
That portion of the charge which is excepted to would be subject to criticism if considered abstractly. Under the .agreement between the parties, the refusal of one of the .appraisers to appraise, whether in good faith or in bad faith, would not give jurisdiction to the umpire. He was empowered to act only “ in case of disagreement,” i. e., in case the appraisers had considered the matters submitted to them and had formed and expressed to each other different opinions concerning them.
But when viewed in the light of the uncontradieted testimony above noticed, the charge does not seem to be prejudicial to the defendant. If, after the appraisers had examined .and conferred about the damage done, they had reached and •expressed to each other different estimates of its amount, and thereafter one of the appraisers, in bad faith, endeavored to prevent further conference or to postpone such conference for •some ulterior purpose, then the other appraiser, acting in good faith, would have a right to regard their difference as a final disagreement, and thereupon to call in the umpire. The ■contract did not require that the appraisers should concur in ■summoning the umpire to settle their differences, but whenever, in fact, a disagreement arose between them, he became
Other matters were discussed upon the argument, but they are not presented by the bill of exceptions.
We find no error in the record, and the judgment should be affirmed.
For ■ affirmance — The Chancellor, Abbett, Dixon, Garrison, Lippincott, Yan Syckel, Boqert, Brown, Smith. 9.
For reversal — The Chief Justice, Depue, Mague, Reed, Clement. 5.
