43 A. 541 | R.I. | 1899
This is assumpsit on a policy of insurance against loss by fire. The defendant pleads that suit was not begun within twelve months next after the fire, as required by limitation in the policy. The plaintiff replies that the defendant, by its duly authorized agents and servants, entered into negotiations with her for the purpose of adjusting the loss without litigation, and repeatedly promised her that the loss should be adjusted without suit and requested her not to bring suit; that, relying on these representations, requests, and promises, she was induced to delay and did delay bringing suit until the twelve months had expired; and that, by reason of such representations, requests, and promises, the defendant is estopped to plead the limitation in the policy. By way of rejoinders the defendant sets up, in answer to the replications, the final clause of the policy to the effect that no officer, agent, or other representative of the company shall have power to waive any provision or condition of the policy except such as by the terms of the policy may be the subject of agreement endorsed thereon or added thereto, and avers that the limitation in the policy is not a provision which by the terms of the policy may be the subject of agreement to be endorsed on or added to it. The plaintiff demurs to the rejoinders upon the ground that the facts alleged in the replications to avoid the limitation of the policy are pleaded as an estoppel, and not as a waiver.
The question thus presented is whether the clause in the policy set up in the rejoinders relating to waiver constitutes an answer to the facts pleaded in the replications, and which, if proved, would create an estoppel in pais against the defendant and preclude it from availing itself of the limitation respecting the bringing of suits. Oakman v. City Ins. Co.,
Demurrers to the first rejoinder to the replication to the second plea and the first rejoinder to the replication to the third plea sustained, and said rejoinders overruled. Case remitted to the Common Pleas Division for further proceedings.