42 Minn. 315 | Minn. | 1890
This action is to recover upon an insurance policy for loss or damage suffered by fire. The defendant does not deny its liability under the policy, but disputes the extent of the loss, in respect to which the parties are unable to agree. The principal controversy in the case is over the arbitration clause in the policy. Under the policy the defendant first undertakes, generally, to indemnify the plaintiff for loss by fire within the amount specified; but we are to look to other provisions in the policy bearing on the question, in order to determine when a cause of action arises, and upon what conditions the loss becomes payable. In this case the policy provides that “loss money will be payable at the expiration of 60 days
The answer of the defendant shows that the parties differ in respect to the damage to the property covered by the policy; that they •attempted to agree and determine the amount of such damáge, but were unable, to agree in respect to the amount to be paid therefor, and thereupon, in pursuance of the provision of the policy referred to, the defendant duly and seasonably made a written request of said
1. An agreement that a right of action should not be enforced through the ordinary tribunals cannot be sustained; and therefore a general covenant in a policy that claims for damages should be settled by arbitration would not be a bar to a suit"for damages. That would be to oust the courts of their jurisdiction. So a provision in a contract to refer any specific matter of difference which might arise under it is no defence, if it is merely collateral to the principal obligation. These cases are entirely distinct from covenants providing for the adjustment of certain differences, or the estimate and determination of amounts or values, as preliminary to the right of recovery. In such case the parties, by the same agreement which creates the liability and gives the right, qualify the right by providing that before a right of action shall accrue certain facts shall be determined, or amounts and values ascertained; and this is made a condition precedent, either in terms or by necessary implication. Del. & Hudson Canal Co. v. Pa. Coal Co., 50 N. Y. 250, 266, and cases; Leake, Cont. 954, 955; May, Ins. §§ 493, 494. Parties may by contract fix the time when a claim growing out of the same shall be due and payable, and may provide therein that certain things shall be done before the same shall become due. Mr. Leake states the result of- the English cases as follows: “A reference to arbitration of
2. By the terms of the arbitration clause or section' above referred tOj^he amount of “sound value and of damage to the property” may be determined by mutual agreement; and, if the parties cannot agree, then the same shall be ascertained by appraisers, to be chosen as therein provided, yhis is the only provision for adjustment contained in the policy. It is clear that the same property the value of which may in the first instance be determined by agreement is to be considered by the appraisers, whether the amount of damage is that of the full value of the property or not, — that is, whether the goods are wholly or partly destroyed. The construction of this section is not ■qualified in the manner contended for by plaintiff by the preceding sections, which relate to the proofs, and the arrangement and care of the property partially injured. In the same stock of goods, many separate packages might be wholly destroyed, while others would be classed as “damaged” goods; but the amount of damage to the property insured would include both classes. And it would hardly be reasonable to hold that the parties intended to make provision for adjusting only a part of the loss or damage to the goods, leaving no provision for the balance, though the assured is required to return, in the inventory constituting a part of the proof of loss, the whole thereof, including property claimed to be wholly destroyed. And it is eminently proper that in such cases, involving the examination of books, and a large number of items, and the extent of the damage, it shall be determined by three men,' as appraisers. It is a matter proper for reference, and the controversy may generally be more sat
Order reversed.