21 Mo. 81 | Mo. | 1855
delivered the opinion of the court.
It was a condition in this policy that the insured, immediately after the happening of a loss, should give notice of it, and as soon thereafter as possible deliver in a particular account of the loss, verified by the party’s affidavit, and “ procure a certificate under the hand of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss, as creditor or otherwise, or related to the insured, that he is acquainted with the character and circumstances of the insured, and has made diligent inquiry into the facts set forth in the statement; and knows or verily believes that the party
In the present case, the court, in effect, directed the jury that the facts suggested in the tenth instruction amounted, in law, to a waiver of the required certificate, (for it seems to have been assumed that notary Pritchartt’s certificate was not in conformity with the condition, and that both of the justices, being more remote from the fire, were not authorized to act,) and whether they do so or not, is the question presented for our judgment.
These facts are, substantially, that the insured gave due notice of the loss, and within a reasonable time afterwards, a particular account of it, verified by his affidavit, accompanied by the certificates of Pritchartt, Allen and Vogel, read in evidence, and abatement and appraisement of the goods saved from the fire, declaring, at the time, that this completed his preliminary proof, and was intended as a compliance with the conditions of the policy ; that the defendant made no objection
The plaintiff refused to receive the amount offered on the 8th of Juno, and afterwards, other communications passed between the parties in writing, in relation to the amount to be paid, which were finally closed by a letter from the defendant, of the 18th June, declining to make any further offer, and stating that, if the one already made was not accepted, they should expect a strict compliance with the conditions of the policy, and require the production of a' certificate from the nearest notary. This was the first time any objection was taken to the certificates. Here, the correspondence between the parties closed, and this suit was afterwards commenced.
The case of Worsly v. Wood, decided in the King’s Bench, (in 6 Term Rep. 710,) was a suit by the insured upon a fire policy, containing a stipulation to the effect that the insured, upon the happening of a loss, should procure “ a certificate of the minister, churchwardens and some reputable householders of the parish, importing that they knew the character, &c., of the insured, and believed that he really sustained the loss, and without fraud.”
The controversy was as to the extent of the loss, and the minister and churchwardens refusing to certify to the full amount claimed by the insured, he procured the certificates of
If the nearest officer were disqualified from acting, by interest or otherwise, or refused to act at all in the matter, the next nearest officer, it would seem, might be considered as embraced within the stipulation; but when the person indicated is qualified, and does act, and his certificate is almost the reverse of what is required, it would seem to be beyond our reach to help the insured, either by disregarding the stipulation or substituting a different one in its stead.
Whether the defendant had waived the production of a proper certificate, was not left to the jury as a question of fact, but was thrown entirely out of the case, and the jury were directed that, if they found the facts detailed in the tenth instruction, they must find for the plaintiff, without any reference to the intention of the defendant or the other circumstances of the transaction ; or, in other words, that these facts estopped the defendant from setting up the want of a proper certificate as a ground of defence. We cannot concur in this direction. We are not required, by the authority of any adjudicated case that we are aware of, which is obligatory upon us, to declare that such is the legal result of these facts, and we do not think they ought to have that effect. The underwriters had a right to protect themselves against fraud by this provision, which they put into the contract for that- purpose, and their engagement to the insured did not subject them to any obligation to pay him until he procured from the person indicated in the pol
Whether the circumstances of the ease will turn out to be such as to justify the inference that the defendants did, in fact, waive the production of any other certificate, is a question for a jury, and not for us. All we determine is, that the facts indicated in the instruction do not, under the circumstances of the case, conclude the defendants, as a matter of law, leaving the question of waiver to be determined by a jury as a matter of fact, upon proper evidence to be submitted to them.
The result is, the judgment must be reversed, and the cause remanded; and the other judges concurring, it is so ordered.