18 Wis. 387 | Wis. | 1864
By the Court,
The objection that notice of the loss was not given in this case as required by the policy, seems to us insurmountable. It is a plain condition of the contract, that, “in case of any loss or damage by fire happening to any member, upon property insured in and with said company, the said member shall give notice thereof in writing to the secretary of said company, within twenty days from the time such loss or damage may have occurred.” It appears to" us that it is utterly impossible to say, in view of the acts of the assured,
Nor do we think it was incumbent upon the company, when
Again, is there anything in the case which shows that the company waived a strict compliance with this stipulation in respect to giving notice of loss, so that it is now estopped from insisting upon the objection that it was not given in time ? It appears to us not. The facts relied upon to show a waiver are the following letters, written to the attorneys who forwarded the notice of the 11th of February with a letter of their own upon the subject of the loss: “ Milwaukee, Feb. 14th, 1862. Messrs. STRONG & Fuller: Gents. — Your favor is at hand, and contents noted. The president of the company (S. S. Daggett) will be at your place on Tuesday, February 18th. Yours, &c., P. B. Hill, Secretary.” “ Office of the Milwaukee Mutual Fire Ins. Go., No 4, Martin’s Block, Milwaukee, April 30,1862. Messrs. Strong & Fuller. Gents: — The President of the company will be in Eacine the first of next week, to arrange the Hertzog matter. Yours, &c., P. B. Hill, Secretary, perT. D.” A few days after the date of this last letter, Strong & Fuller were notified by the company that the matter
We do not think there is anything in the letters above quoted which, upon any sound principle, can be considered as a waiver of the defect in the time of giving the notice. As already observed, if the defect had been one that might have been cured, then, by omitting to apprise the assured of the ground of the objection so as to give him an opportunity to remove it, the company might well be said to have waived the defect. The defect in this case might undoubtedly be waived, but the evidence of waiver should be clear and satisfactory.
We think the nonsuit was right, and that the judgment of the county court must be affirmed.