6 Gill 87 | Md. | 1847
delivered the opinion of this court.
In this case, an action of covenant was instituted by the appellee against the appellants, on a policy of insurance against loss by fire, executed by the Insurance Company, on the 14th May, 1842.
The defendant pleaded non infregit conventionem, to which was annexed the following agreement, signed by the counsel in the cause:
“ All errors in pleading are released, and any matter may be given in evidence under the above plea, which might be given in evidence under any other plea or pleas—provided, notice in writing of the substance of such defence be given four weeks before the trial.”
It does not appear from the record that notice in writing was given by the defendants, of the defence on which they intended to rely as required by the agreement, and the case stands on the plea of non infregit conventionem.
The court, therefore, committed no error in rejecting the defendants’ first, second and third prayers.
The court below were also correct in rejecting the defendants’ fourth prayer.
In a contract of indemnity, like the one under consideration, the right to recover must be commensurate with the loss actually sustained by the plaintiff, and any evidence conducing to show that the damage consequent upon the fire was less than that claimed by the plaintiff, would be admissible; but the doctrine relative to the mitigation of damages, has no application to a case of this description.
The plaintiff, in his first prayer, asked the court to instruct the jury:
“ That he is entitled to recover the amount of damage he actually sustained by the fire, which occurred on the 20th July, 1842, if the jury believe that his loss was not repaired by the defendants within the time stated in the policy, and has not since been paid; and that no parol evidence is admissible to show that said Hamill consented, in opposition to the terms of the said policy, to allow such repairs to be made at any time after the period specified in said policy.”
By the eighth article of the policy, it is stipulated:
“ That all persons assured by the Company, sustaining any loss or damage by fire, are forthwith to give notice to the secretary, and as soon as possible after, deliver in as particular an account of their loss or damage, as the nature of the case will admit of, and to produce to the Company satisfactory proof thereof.”
It is evident that the plaintiff in this case was not entitled to recover, unless he proved that the property insured was destroyed by fire; and, that notice of the loss was given, and an estimate of the damage sustained, furnished to the Company,
In the last case, the court says:
“ The first and second instructions are, in effect, an assertion by the court, that the Eliza Davidson was captured and detained by the Pearl, and in the third instruction, that the Corrientes was blockaded on and after the ship’s release at Montevideo. Doubtless, tbe jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy the jury, or the circumstance, that it is all on one side, does not authorize the court to instruct the jury, that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right to weigh the credibility of evidence. In thus incautiously expressing their opinion, the court erred.”
It is apparent from an examination of this prayer, that the court, by instructing the jury that the plaintiff was entitled to recover, assumed the fact, that a fire occurred on the day mentioned in the prayer, and also, that notice of the disaster was forthwith communicated to the secretary of the Company, and a particular account of the loss or damage sustained by the plaintiff, delivered as soon as possible after the fire, in conformity with the stipulations of the contract. These were questions for the consideration of the jury, and the court erred in granting the prayer.
The judgment of the County Court, is, therefore, reversed. But, we desire to be understood, as expressing no opinion on the question, whether the parol agreement offered in evidence by the defendants, would have been admissible in a different condition of the pleadings.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.