71 Vt. 281 | Vt. | 1899
The statement of facts shows that the defendant, by its policy of fire insurance, insured to the amount of one thousand dollars, certain personal property of the plaintiffs,-situated in their establishment for packing and curing meats, etc., in Ottumwa, la. On July 12, 1893, while the policy was in force, a fire occurred by which the plaintiffs suffered a heavy loss upon the property so insured, of which they gave the defendant due notice. Some correspondence took place between the parties upon the subject of the loss, which resulted in an adjustment of the same. On March 10, 1894, the defendant, by its secretary, wrote the plaintiffs: “We hand you drafts for loss and interest, under policy No. 27,015, with the interest on the same, and we trust that you will find the same correct. These items will be paid when due: . . . Drafts, one hundred dollars, due at sight; two hundred and twenty-
The drafts were drawn by the defendant upon itself and made payable to the plaintiffs. On receipt, the plaintiffs used the sight draft by sending it through the banks for collection, and it was paid by the defendant. The plaintiffs immediately returned the other four drafts to the defendant by letter, saying in substance that.they enclosed them, and requesting the defendant to indorse upon each of them the following: “This note becomes due, should any of the other notes of this series, numbered respectively 1908, 1909, 1910, 1911, not be paid at maturity.” The plaintiffs further requested that the drafts be returned to them when so indorsed. The four drafts were received by the defendants after their payment of the one-hundred-dollar draft. The defendant did not indorse the four drafts, nor return them, nor pay them to the plaintiffs, though several times requested to pay them before this suit was brought, which was on June 7, 1897, nor had the defendant withdrawn its proposition to pay the loss as stated in its letter of March 10, 1894, and as expressed in the drafts.
It was clearly competent for the parties to the contract of insurance to stipulate in respect to the time within which a suit should be brought by the insured against the defendant after a loss occurred, and take the case out of the statutory time for bringing such actions, and they did so contract by the seventh condition in the policy which reads: “That no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in anv court of law or equity until after full compliance by the insured with all conditions and requirements printed and written on this policy, nor unless such action shall be commenced within twelve months next after the loss shall occur; and should any suit or action be commenced against
fl) As the suit was not brought until more than four years had elapsed from the occurrence of the loss and more than three years from proof thereof, the plaintiffs had lost their right of action unless the defendant, by its conduct in adjusting the loss and giving the drafts, induced the plaintiffs to delay bringing their suit, or waived the seventh condition in the policy, so that the plaintiffs might bring suit at any time within six years from proof of loss.
It is unquestionably the law that any line of action on the part of the defendant which led the plaintiffs reasonably to believe that their claim would be paid without suit would estop the defendant from setting up the limitation provided in the policy. They would not be permitted to hold out the hope of payment and thus cause the plaintiffs to delay suit until the limited time had expired, and then interpose the condition in the policy in defense to an action. Mickey v. Insurance Company, 35 Ia. 174. But it does not appear that the plaintiffs were misled by the defendant’s action in the premises, nor that they were by such action induced to delay bringing suit beyond the time fixed by the contract. Four of the twelve months within which a suit might have been brought remained when the plaintiffs returned the drafts to the defendant for indorsement, and the case does not show that the plaintiffs believed during all that time that their claim would be paid without suit. In all the cases cited upon the plaintiffs’ brief it affirmatively appeared that the plaintiffs were misled by the defendant’s conduct and omitted to bring suit in consequence of such conduct.
(2) The plaintiffs cannot recover upon the drafts, for they did not accept them. After the amount of the loss was agreed upon the defendant sent the plaintiffs the five drafts for their acceptance in payment, which the plaintiffs might
Upon a careful examination of the record we are unable to
Judgment reversed and judgment for defendant.