45 Neb. 535 | Neb. | 1895
St. Patrick’s Church is a religious corporation organized under the laws of the state and situate at O’Neill, Ne
There are numerous assignments of error here that the district court erred in giving all of certain named instructions and that it erred in refusing to give all of certain named instructions. We have examined these instructions so far as to discover that some oí the instructions given by the court were properly given, ; n 1 that some of the instructions refused by the district court were properly refused. The assignments of error, then, as to the giving and refusing of instructions are overruled.
Certain assignments oí error relate to the action of the district court in the admission and rejection of evidence, but in view of the conclusion reached by us these assignments will not be noticed.
The first argument, as we understand it, is that the only damages which the sureties and contractors suffered by reason of the failure of the church to insure its interest in the property is the amount of premium which it would have required to effect this insurance; that the contractors^ having ascertained that the church had not insured the property to the extent of its interest, should themselves have taken out the insurance and charged the cost thereof to the church. We do not think this argument is tenable, whether applied to the contractors or sureties, but we are quite clear that it is not sound when applied to the latter. The very object of having the church insure its interest in the property was to lessen the risks taken by the sureties. The sureties were under no obligations to make inquiries
Another argument is that the destruction of this building was the result of the negligence of the contractors, and that, therefore, they and their sureties are estopped from insisting upon the defense that the church failed to insure the property to the extent of its interest therein. The reply pleaded by the church to the defense of its failure to insure the property has already been set out. In this reply the church did not plead as an estoppel against the sureties that the property had been destroyed through the negligence of the contractors. It seems, however, that the question as to whether the destruction of the building was the result of the negligence of the contractors was made an important question before the jury. We are at a loss to understand how this question could have been material under the pleadings in the case. The sureties by their
Another argument of the church is that the amount of insurance that it effected on the property was as much as any responsible insurance company would insure the property for. This, as already seen, was a part of the reply of the church to the defense of its failure to insure the property. Wedo not think this reply a good one in this respect. The church unconditionally contracted to insure the building to the extent of its interest. Having made this agreement, it was bound to perform it; and the fact that it was unable to procure insurance companies to write insurance on the building to the extent of its interest therein does not relieve it from the performance of its agreement. (Beebe v. Johnson, 19 Wend. [N. Y.], 500.)
Reversed and remanded.