Case No. 2018 | Tex. | Feb 10, 1885
There is no statement of facts in this case, and it must be disposed of on the conclusions of fact and law as found by the court.
From the former it clearly appears that a person appointed by the insurance company made an adjustment of the loss with Adair, after he had assigned the policy to the appellees, and that in that adjustment an entire invoice of goods purchased by the insured was omitted.
It also appears that the appellees were not given an opportunity to participate in that adjustment, notwithstanding they had given notice to the firm authorized by the insurance company to make the adjustment of their desire to do so, before the adjustment was made.
Under this state of facts it is contended that the adjustment so made was conclusive of the value of the property destroyed.
If the question were one between the insurance company and Adair, we are of the opinion that this proposition could not be sustained; and that he might show that in the adjustment, through inadvertence or mistake, he had omitted the invoice of goods not included.
It is believed that either party, after an adjustment has been made, and before payment, may avail himself, upon clear proof, of any defense, or may assert any right which he has under the policy, arising from facts not considered when an adjustment was made.
It would seem that, as between such parties, the adjustment is but evidence of the amount due, and sufficient of itself, if not rebutted, to make prima facie proof; but that, like other admissions, may be controverted and shown to be incorrect, and the real sum due shown. In the case of Luckie v. Bushby, 13 Com. Bench B., 877, this question was considered, and opinions given by three of the judges. Jervis, 0. J., said: “I think the adjustment has not the effect of ascertaining and rendering liquidated the amount of the plaintiff’s claim, so as to dispense with the intervention of a jury; but it is only a means to enable the jury to fix the amount for which their verdict ought to be given. It is not an absolute and final settlement which is to be binding upon the parties. It may or may not; though generally it will be binding and conclusive on the jury and on the parties as to the amount.” Ores well, J., said:
*286 “ This action undoubtedly is an action for unliquidated damages. By the adjustment the parties have agreed that the damages shall be assessed at a certain sum. It may be that this would prevent either from saying, without some substantial ground, that the sum so agreed is not the proper measure of damages; but still it is only a mode of enabling the jury more easily to arrive at the proper estimate. Suppose the plea had gone further, and said that the plaintiff had agreed to accept the sum mentioned in satisfaction and discharge of his claim upon the policy, even that would not have rendered this any other than an action for unliquidated damages.”
Talfourd, J., said: “ I am entirely of the same opinion. The adjustment undoubtedly is strong evidence to determine the amount of the plaintiff’s claim upon the policy, but it is not conclusively binding upon the parties. Practically, it may or may not be that the adjustment dispenses with the decision of a jury as to the amount of the damages; but still there may be other evidence; it may be shown that there was mistake or misrepresentation.”
The following authorities sustain the views we have expressed: Elliott v. Royal Exchange Assurance Co., 13 L. R., 2 Exch., 240; Herbert v. Champion, 1 Camp., 136; Shepherd v. Chewter, 1 Camp., 274; 1 Greenl., 212; Wood on Insurance, sec. 468; Phillips on Insurance, 1814, 1817, 2151; 6 Wait’s Actions, 412, 427; 1 id., 195, 196.
Adair, however, was not the real beneficiary in the policy at the time the adjustment was made; before that time it had been assigned to L. & H. Blum. The policy, upon its face, contemplated that such an assignment might be made; the assignees desired to participate in the adjustment, and of this the firm, authorized by the appellant to make it, had notice; nothing has transpired to prejudice the right of the appellant or of any third person, and we are of the opinion, even if the adjustment could have been held conclusive between the appellant and Adair, that it cannot be so held as against the appellees. There is nothing in the policy, so far as it is set out, which requires a different holding, and we see no reason why the appellees should be bound by the admissions of Adair made after he had parted with Ms title to the policy and right to receive the amount due on it.
We may say of the appellees and their right as was said by the supreme court of Rhode Island in Brown v. Insurance Co., 5 R. I., 399, “ In common justice, their interest in the policy required their assent to the adjustment of the loss, in order to make it binding
Affirmed.
[Opinion delivered February 10, 1885.]