248 F. 452 | 2d Cir. | 1917
(after stating the facts as above).
“This company shall not be liable beyond tbe actual cash value of tbe property at the time any loss or damage occurs, and tbe loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable 60 days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other like kind and quality within a reasonable time, on giving notice, within 30 days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described.”
The defendant insists that it exercised the option to replace, to which it was entitled, and that the plaintiff refused its offer. Where an insurance company has elected to replace, the law is that from that time the contract of insurance becomes converted into a new and independent undertaking on the part of the insurers to replace the property, restoring it to its former condition. Richards on Insurance (3d Ed.) § 244.
It is urged that the court below was in error in not submitting to die jury the question whether or not there was an offer made by the defendant to' replace. But no error was committed in this respect, if the facts relied upon as constituting the offer did not in law amount to one which the plaintiff was bound to accept. The offer defendant claims it made was an offer to replace the oil involved in the first cause of action. No claim is made of any offer to replace the oil involved in the second cause of action. It may be conceded that, if an offer was made as to the oil involved in the first cause of action, and plaintiff without legal excuse refused to allow the defendant to replace it, the first cause of action fails. We fail, however, to find any evidence in the record of an offer which could be regarded as sufficient in law.
The defendant’s answer sets up that, within 30 days after its receipt of proof of loss, it notified the plaintiff that it desired and was ready to replace the property “with other property of like kind and quality,” and that it offered so to do’, both orally and in writing. There is, however, no evidence in the record that the offer to replace was an offer to replace with oil of “like kind and quality” to that which was destroyed. Petroleum oils vary greatly in their properties, and the lan
“This company shall not bo liable beyond the actual cash value oí the property at the time any loss or damage occurs and the loss or damage shall be ascertained or estimated according to such actual casli value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality.”
The actual cash value of the oil at the time of the fire was to be the measure of damages, but it could not exceed what it would cost the insured to replace it. The cash value of an article is the amount of cash for which it will exchange in fact. Ankeny v. Blakley, 44 Or. 78, 74 Pac. 485; National Bank of Commerce v. City of New Bedford, 155 Mass. 313, 29 N. E. 532. And cash valuéis the market value for which an article will sell for in cash on the market. Missouri, K. & T. Ry. Co. of Texas v. Murray (Tex. Civ. App.) 150 S. W. 217, 218;
As respects the oil destroyed at Shannondale, Mo., and which is involved in the second cause of action, the .evidence is that it had the ■ same value as the oil in» th‘e Oklahoma or Ousting field. We do not find in the record contradictory evidence upon that point.
The plaintiff claims that it is entitled to recover these gathering and pipage charges, which charges enhanced the value of the oil. The prices charged for these services were on the basis of a tariff approved by the Interstate Commerce Commission, and were mandatory. The tariff as published regulated the charges from Bartlesville to Wood River, Ill. There was no published tariff to Shannondale. The amount charged to Bartlesville was therefore proportioned in accordance with the through rate to Wood River. It. was conceded by defendant’s counsel at the trial that tlie plaintiff was entitled to recover the cost of carriage to the tanks. This -he did in reply to a statement made by the trial judge that:
“Tlie cash value would be the cost of production plus the cost of carriage. I think he would be entitled to show the cost oí carriage to their tanks.”
To which defendant’s counsel answered:
“If there were a tariff to Shannondale, yes; but he is not entitled to fix the apportionment between the points.”
To which the court replied:
“That is the only way he has to fix it.”
The testimony disclosed that plaintiff had no way of determining what it actually cost it to pipe the oil, and it charged on the basis of the rate fixed by the Interstate Commerce Commission; its officer testifying that it could riot carry for less than that.and that they could not charge more. It being admitted by counsel at the trial that, if there had been a published tariff to Shannondale fixing the carriage charge, the rate so fixed could be accepted, we think that the court was justified, under the circumstances, in permitting the evidence to go in that the charge made was proportioned on the basis of the rate as fixed to Wood River.
Judgment affirmed.