10 Daly 535 | New York Court of Common Pleas | 1882
It was provided by the terms of the policy, that in case of loss the amount of damage might be determined by mutual agreement between the company and the assured, or, failing to agree as to the amount of damage, that the same should, at the written request of either party, be ascertained by an appraisal and estimate by competent and impartial appraisers, one to be selected by each party ; and that the two so chosen should first select an umpire to act with them in case of their disagreement; and that if the appraisers failed to agree, they should refer the
The plaintiff and the defendant having failed to agree, a determination of the amount of damage by arbitration in the mode provided for by the contract was a condition precedent, the parties having by their contract provided how, in an event that has occurred, the damage was to be ascertained.
It is well settled that this is a condition to which the courts will give full effect, and that before the assured can bring an action at law to have the amount of damage determined by the ordinary legal tribunals, he must show that he has done everything on his part, which could be done by him, to carry this condition into effect.
Indeed, it has been said, that under such a contract, there, is, in the absence of fraud, no cause of action, either in law or in equity, unless the award is made (President of Delaware, &c., Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 267; Story’s Equity Jurisprudence, 1457a ; Herrick v. Belknap, 27 Vt. 673), which is probably going too far. Some of the cases even go to the length of holding that no action lies until the award is made (Scott v. Avery, 5 H. L. 811 ; 8 Exch. 417; Braunstein v. Accidental Death Ins. Co., 1 Best & S. 782; Treadman v. Holman, 1 Hurls. & C. 72).
T think, however, that the true rule is the one laid down in United States v. Robeson (9 Pet. 327) that where the parties, in their contract, fix upon a certain mode by which the amount to be paid shall be ascertained, the party who seeks to enforce the agreement by an action in the ordinary legal tribunals must show that he has done every thing on his part which could be done to carry this provision of the agreement into effect, and this, in my judgmént, has not been shown in this case.
There is no contradiction as to the facts. The plaintiff and company could not agree as to the amount of damage, and the company notified him in writing that there must be an
All that appears from these facts is that the two appraisers failed to agree upon a third, for which failure neither the plaintiff nor the defendant were in any way responsible, from anything that appears in the evidence. The failure of the appraisers selected by the respective parties to agree upon a third as the umpire is one of those incidents that sometimes occur, and it does not follow, because this takes place, that this provision in the contract is at an end, and that the plaintiff may at once resort to his action to have the damages determined by the ordinary legal tribunal.
In Altman v. Altman (5 Daly, 436), each of the parties selected an arbitrator, and the arbitrators so selected had several meetings to consider the subject submitted to them, but failed to agree as- to the amount of the award, or as to the choice of the third arbitrator. In that as in this case the plaintiff brought his action, and upon the trial his complaint was dismissed. He appealed to the general term, and the judgment given against him was affirmed.
I said in that case what is equally applicable in this, that it did not follow, because the two arbitrators selected could not agree upon a third, that an arbitration was impossible; that if they could not agree, it was for the plaintiff, before resorting to his action, to propose to the defendant the selection of two others in place of those who could not agree upon
In the present case, I do not think that the plaintiff has complied with the rule above referred to, which requires him to do everything in his power to have the agreement carried into effect and the damage ascertained, in the mode provided for in the contract.
Having been notified by the appraiser selected by him of the failure of the two selected to agree upon a third as an umpire, it was his duty at least to propose to the defendants that they should each select new appraisers, that the condition precedent might, in good faith, be complied with, instead of which he at once resorted to his action, upon, I suppose, the assumption that this provision in the contract was at an end, so that an arbitration in compliance with it was impossible, a conclusion that by no means followed.
The failure of the two appraisers selected to agree upon a thii'd was not an extraordinary or unusual occurrence. It occurred in Altman v. Altman (supra), and I have known several other cases in this court where this difficulty arose.
It is an obstacle for which neither of the principals are answerable, unless they have had something to do in bringing it about, and where an unanticipated event like this takes place the obligation is upon both of them to do what they can to remove it by substituting others for the disagreeing appraisers.
I am of opinion, therefore, that, as in Altman v. Altman (supra), the defendant’s motion to dismiss the complaint should
Van Brunt and J. F. Daly, JJ., concurred.
Judgment reversed and new trial ordered, with costs to abide event.