69 Mo. App. 226 | Mo. Ct. App. | 1897
In addition to the other and necessary allegations, the petition alleged compliance with all the terms of the policy. The defendant set up and relied on two defenses: First, that the assured failed and refused to furnish the company with certified copies of bills or invoices belonging to said millinery business, and second, that there was no arbitration as to the amount of loss .as the policy required.
The issues were tried by the court sitting as a jury and resulted in a finding and judgment to this effect; that'the household goods destroyed, and on which there was $250 insurance, were of the v'alue of $493; and that the millinery goods destroyed, and on which the insurance was $500,° were of the value of $800; and 'then finding that plaintiff and those through whom he claims had complied with and performed all conditions of the policy sued on, gave judgment for plaintiff for the amount named in the policy, to wit, $750 and interest.
From- this judgment defendant appealed.
I. Since at the trial of this case no instructions were asked or given, save and except a demurrer to the evidence, it is our sole duty to determine whether or not the judgment of the circuit court on any theory within the issues of the pleadings, can be upheld. .
Now, in this case there was, it is true, no appraisement as required by the policy, but it was because of the defendant’s refusal to arbitrate. The evidence shows that on February 3, 1894, and before the present action was begun, the assured and those who represented her, made written request of the defendant that the matter of the extent of the loss be settled by appraisement as provided in the policy. But the defendant’s agents and officers declined, and for the reason alone, as already stated, that an action on the policy was already pending, etc. But this was no valid excuse. The effect of an agreement, then to arbitrate would have been to discontinue the action theretofore instituted; and hence the pendency of that action (shortly thereafter dismissed) was no obstacle in the way of an arbitration under the terms of the policy. Bowen v. Lazalere, 44 Mo. 383.
The judgment here is for the right party and will be affirmed.