| Mass. | Nov 15, 1855
1. Since this case was argued, the court have decided, after full deliberation, that a misrepresentation by the assured, not specified in the defendant’s answer, cannot be relied on to defeat an action on the policy, although such misrepresentation is first disclosed by the plaintiff’s evidence. Mulry v. Mohawk Valley Ins. Co., post, 541.
2. We have no doubt that the question, whether the machinery was finished within a reasonable time, was rightly left to the jury. In Tindal v. Brown, 1 T. B. 168, Lord Mansfield said: “ What is reasonable notice is partly a question of fact and partly a question of law. But wherever a rule can be laid down with respect to this reasonableness, that should be decided by the court, and adhered to by every one for the sake of certainty.” In Chesapeake Ins. Co. v. Stark, 6 Cranch, 273, which was an action on a policy of marine insurance, where one question was, whether the assured had made an abandonment in a reasonable time, Chief Justice Marshall said: “ The law is settled, that an abandonment, to be effectual, must be made in a reasonable time; but what time is reasonable is a question compounded of fact and law, which has not yet been reduced to such certainty as to enable the court to pronounce upon it without the aid of a jury. Certainly the delay may be so great, as to enable every man to declare, without hesitation, that it is
Besides ; there are numerous decisions, from which this case cannot be distinguished, showing that the question of reasonable time was peculiarly proper for the consideration of the jury. In Facey v. Hurdom, 3 B. & C. 213, and 5 D. & R. 68, the question was whether, after the setting out of tithe, the crop had been left on the ground a reasonable time for the tithe-owner to compare his tenth with the residue. Bayley, J. said: “ There certainly are cases where it is for the judge to say what is a reasonable time. But in this instance the question depended upon a variety of circumstances, such as the residence of the respective parties, the time when notice was given that the corn would be tithed, the state of the weather, and other things most proper for the consideration of the jury; and I think that the question was properly left to them.” In Cocker v. Franklin Hemp & Flax Manuf. Co. 3 Sumner, 530, the question, whether goods, that had been ordered from England, had been furnished in a reasonable time, was submitted to the jury. Story, J. remarked: “ The whole question now before the jury is whether these articles were manufactured and offered to be delivered within a reasonable time. That reasonable time must be judged of by all the circumstances, and, of course, with all the natural calculations, which might fairly arise from the distance of the countries^ the season of the year, the state of the markets, and orders, the pressure of business, and the common disappointments and retardations incident to the manufacture of any new article.” See
3. The court cannot adopt the view taken by the defendants’ counsel, as to the legal effect of the twenty-third article of their by-laws on the plaintiff’s right to maintain this action on his policy. That by-law, as' it seems to us, only suspends the right of action on the policy during the time within which the defendants have a right to rebuild, repair or replace the property lost or damaged, instead of paying the loss in money.
4. We are of opinion that the judge erred in excluding the testimony of Slocomb. A new trial must therefore be granted to the defendants. But as the excluded testimony related solely to the amount of damages,-the new trial will be confined to that point.