65 Iowa 468 | Iowa | 1884
The policy was issued to one Edmunds, who, after the loss, assigned it to the plaintiff. The loss occurred on October 19, 1881, and proofs of the loss were furnished the defendant on November 21, 1881. This action was commenced on the seventh day of August, 1882. The defendant pleaded that the action was barred, because it had not been brought within the time fixed in the policy. The plaintiff replied that the defendant had waived such defense, and was estopped from setting the same up.
I. The provision of the policy on which the defendant relies is as follows: “ And provided, further, and it is hereby expressly covenanted .and agreed by the parties hereto, that no suit or action against this company, for the recovery of any claim under and by virtue of this policy, shall be sus
It is obvious, from the foregoing statement .of facts, that this action is barred, unless such defense was waived, or the defendant is estopped from setting it up. The claimed waiver and estoppel are based upon the same facts. They are as follows: About the fifteenth of November, 1881, the defendant’s adjusting agent made an examination in relation to the loss, and in substance recommended to the defendant that it should pay an amount agreed upon by him and the plaintiff. A few days after receiving the report of its adjuster, the defendant wrote to the assured as follows:
“ November 23, 1881.
“ D. F. Edmunds, Esq., Oto, Iowa — Dear Sir: We are in receipt of your proofs of loss. Inclosed we send you blank form of receipt to be signed by you, and by any and all parties to whom you may have assigned an interest in your insurance. When properly signed, forward receipts and your policy to any bank'of this city. * * * Upon receipt of the above in due form, and the absence of any additional evidence, we will pay as per above receipt.”
The receipt was duly signed and forwarded as directed by the defendant, but the policy was not returned. About the
II. It is further insisted that the defendant agreed to pay a specified sum when certain receipts were signed; but the promise was not absolute, but conditional. One of the conditions was that the policy was to be returned. As this was not done, the defendant was not bound to pay. Another was that the defendant reserved the right to decline to pay if additional evidence was discovered which showed that the defendant was not liable. It claimed to have discovered such evidence, and notified the plaintiff that it would not pay, as it had conditionally promised to do, within one month after the proofs of the loss had been furnished it. The plaintiff, therefore, had five months within which he could have brought his action, before it was barred under the conditions of the policy. If ’ the plaintiff was induced to believe that the defendant would pay without suit, this was promptly retracted, and the plaintiff, in substance, notified that he must rely on his legal rights. As there was no dispute as to the facts above
Affirmed.