136 Minn. 34 | Minn. | 1917
This is a proper case for the application of that rule.
The testimony on behalf of plaintiff in this case meets these requirements. Hanrahan and plaintiff agreed upon insurance of plaintiff’s crops of 125 acres, 100 acres of wheat and 25 acres of corn. Both of them in effect so testified. Hanrahan then asked for the description of1 the land. Plaintiff testified that he gave Hanrahan the correct description, and that Hanrahan erroneously inserted in the application in the place of one of plaintiff’s quarter sections, the description of another quarter section on which plaintiff had no crop at all. Hanrahan does not attempt to deny this. The evidence is conclusive that there was a mistake. The evidence of plaintiff is clear and undisputed that the mistake was mutual.
“It is furthermore expressly provided and mutually agreed that no suit or action against this company for recovery of any claim by virtue of this policy shall be sustainable in any court until after an award shall have been obtained, fixing the amount of claim by arbitration.
“Such arbitration shall be demanded by giving a written registered notice within five days of the date of the adjustment. If such notice is not given within the required time all further claim ceases and the adjustment as allowed by the adjuster is binding..
“In case of loss under this policy, and failure of the parties to agree as to the amount of such loss, it is mutually agreed that such amount shall be referred to three disinterested men, the company and the insured each choosing one out of three persons named by the other, the third selected by such two. -The written award of a majority of such referees shall be final and conclusive upon the parties as to amount of loss, and such reference, unless waived by parties, shall be a condition precedent to any right of action to recover for such loss.”
The policy is not happily worded, but we think the intention is clear. It means that there shall be an arbitration “in ease of * * * failure of the parties to agree as to the amount of such loss,” and in such case no
Plaintiff’s evidence is that there was no disagreement as to the amount of the loss, but that, on the contrary, plaintiff’s president called on him for the purpose of adjusting the loss, that they were fully agreed as to the amount of it, and that they disagreed only as to the question whether defendant was liable at all for loss to the crop on the northeast quarter. The trial court so found. These facts being established, no demand for arbitration was necessary.
Judgment affirmed.