150 Mo. App. 17 | Mo. Ct. App. | 1910
Adopting the statement of counsel for appellant, “this is an action on a fire insurance policy which covered a tenement dwelling in Mexico, Missouri, belonging to the plaintiff. Within the term of the policy a fire occurred which damaged, but did not destroy the building insured. After the fire notice of the loss was given defendant and its representative endeavored to reach an agreement with the plaintiff concerning the amount of the damage but Avas unable to do so, and thereafter an offer was made to plaintiff of about forty-five dollars and rejected. Plaintiff claimed that the damage was $512. Being unable to agree upon the amount of the damage, the parties did agree that the question of the amount of damage should be submitted to appraisers as provided by the terms of the policy, and acting thereunder each named an appraiser. These parties experienced some delay in getting together and while they were endeavoring to arrange for a meeting but as yet had not done so, defendant’s appraiser was notified by the insured that insured had withdrawn from appraisal and thereafter the party appointed' by plaintiff acted no further, and no áppraisal was ever had, nor were the efforts to secure an appraisal renewed by the insured. This withdrawal occurred about the middle of April. In May, the matter being still unsettled, defendant Avrote plaintiff’s attorney that if they could meet in Mexico on a cer
The errors here relied on and points urged for a reversal are, that the parties having disagreed as to the amount of the loss sustained, the appraisal clause of the contract be'came operative and was so recognized by the parties in their appointment of appraisers, and thereafter, under the pleadings, until there had been an appraisal of the amount of loss, the claim had not matured; that an appraisal having become necessary and agreed upon it should have been completed; that the assured had no right to withdraw therefrom and that the meeting arranged for between the representatives of defendant and plaintiff was understood by both parties to be for the purpose of compromising the differences, if possible, and that thereby no rights could be Avaived, hence evidence of what was done or said under that agreement at that meeting and Avhile endeavoring to effect a compromise, should have been excluded. It should be stated that the policy in this case does not appear in the abstract and Ave have no way of determining with accuracy the language of the policy or of any of its clauses. It is stated in the abstract that the policy was offered in evidence, “the material parts of which are as follows.” But we do not find the material parts or any parts of the policy copied anyAvhere in the abstract. It does appear from the answer in the case, that the policy contained the usual clause, that if there was a disagreement as to the amount of the loss betAveeih the parties, it should be ascertained by tAYO competent and disinterested appraisers, one