238 Mass. 462 | Mass. | 1921
A building owned by the plaintiff was destroyed by fire while the policies of insurance in the standard form pre- (
The policies provided that in case of loss and a failure of the parties to agree, the amount of such loss should be submitted to three disinterested men, their award to be final as to the amount of loss or damage, and such reference, unless waived by the parties, “ shall be a condition precedent to any right of action in law or equity to recover for such loss.” There was at no time a reference to three disinterested men as required by the policies, and this reference unless waived, was a condition precedent to the plaintiff’s right to recover; Union Institution for Savings v. Phoenix Ins. Co. 196 Mass. 230, 234, 236. Weisman v. Firemen’s Ins. Co. 208 Mass. 577. Hanley v. Ætna Ins. Co. 215 Mass. 425. Second Society of Universalists of Boston v. Royal Ins. Co. Ltd. 221 Mass. 518. We discover no evidence that the defendants waived their rights under the .policies; in fact, the evidence shows that they stood strictly on their legal rights and insisted on compliance with the terms of the policies and by no act or word waived any of their claims. Union Institution for Savings v. Phoenix Ins. Co. supra. Paris v. Hamburg-Bremen Fire Ins. Co. 204 Mass. 90.
The St. 1907, c. 576, § 60, provided a remedy in case th,e referees chosen failed to select the third referee within ten days from their appointment. Either of the two referees already chosen, or either of the parties, could make written application to the insurance commissioner to appoint the third referee. No such application
As the plaintiff cannot recover for the reasons stated, we have not considered the other questions raised at the trial. In each case judgment is to be entered for the defendant.
So ordered.