132 Mo. App. 405 | Mo. Ct. App. | 1908
This is a suit on a fire insurance policy which was issued to plaintiffs June 16, 1906, for $1,500 covering $300 on store, office furniture and office fixtures and $1,200 on stock of general merchandise situated in a store at Sheldon, Missouri. Plaintiffs claim that there was a total insurance of $8,900 on their stock of goods and $600 furniture and fixtures. There was concurrent insurance on the property also in relation to which there is no issue made by defendant.
The plaintiffs acquired the property in suit in the latter part of February, 1906, and commenced business <on or about March 1st, next thereafter and the business continued until August 1st following when a fire occurred which plaintiffs claim destroyed all the goods. Plaintiffs kept books showing sales and purchases made by them. The plaintiffs’ evidence tends to show that
There was as stated a condition in the policy that in the event of a disagreement as to the amount of plaintiffs’ loss the disagreement should be settled by appraisers. As there was a disagreement and no such appraisement asked by plaintiffs and none had the defendant contends that plaintiffs cannot recover, the action being premature. It is held that the arbitration provision in a policy is mandatory and is a condition precedent to defendant’s liability. [Murphy v. Insurance Co., 61 Mo. App. 323; McNees v. Insurance Co., 69 Mo. App. 232; Murphy v. Insurance Co., 70 Mo. App. 78.] Those decisions were not rendered in cases arising under the amendment of 1895, wherein it is provided by section 7979, Revised Statutes 1899, that “no company shall take a risk on any property in this
As we understand the case defendant’s adjusters were not endeavoring to avoid the provisions of said section 7979 but on the contrary were asserting that the amount of goods destroyed did not equal in value the amount insured, and that there had been a diminution of from twenty to thirty-five per cent. To-this statement of the adjusters plaintiffs did not agree, and that was all. Nothing was said as to settling any difference by the selection of appraisers to fix the value-of the goods destroyed. The case therefore does not come within the rule expressed in Cullen v. Insurance Co., 104 S. W. 117, 126 Mo. App. 412. Where the adjuster of an insurance company after a loss stated to-the insured that unless he would accept a certain sum in payment for the property totally destroyed, the loss would not be adjusted, and the insured could either a.ccept the terms or sue, and the insured brought suit on the policy, the court held that the company was estopped to set up the defense of the arbitration clause in the policy.
The plaintiffs have failed to comply with the said condition of the policy and are not entitled to recover in this suit. Other questions are raised on the appeal.