75 Colo. 21 | Colo. | 1924
delivered the opinion of the court.
These parties appeared in reverse order in the trial court and are hereinafter referred to as there. Plaintiff sued on a policy of fire insurance, and to review a judgment in her favor, entered upon the verdict of a jury, defendant brings error.
The policy in question was for $7,500 and was issued December 18, 1920, on certain buildings and contents. The fire occurred January 6, 1921. Negotiations were soon thereafter entered into for an adjustment, and for that purpose plaintiff delivered her policy to defendant’s agent. October 1, 1921, defendant paid plaintiff $3,000 and took her receipt in full. The complaint herein was filed January 20, 1922. Plaintiff alleged that her actual loss was $6,000 and that she had received $3,000 on that account. No mention was made therein of the settlement and receipt in full. The answer alleged that “a difference and disagreement and controversy arose between plaintiff and defendant with respect to the value of the property and the amount of the loss thereon and the amount recoverable under the said policy by reason of said fire,” and the $3,000
Much of the argument on each side is directed to the question of fraud. The allegations in the replication upon which this defense to the settlement is predicated are either immaterial thereto, (such as that defendant’s agents stated that plaintiff should have employed a lawyer), or are mere statements of law, (such as that plaintiff had failed to make a sworn statement of the amount of her loss within a certain time and for that reason had forfeited her legal rights). They are wholly insufficient to support the defense under principles too well established to require discussion.
By its motion for a more specific statement defendant
The special finding of the jury was made at defendant’s request and leaves it no standing here. Assuming, as we must, the truth of the evidence which supports that finding, we learn that the company admitted a loss of at least $3,600, that by a sham contention as to its legal liability it raised a pretended controversy, and as a compromise thereof paid plaintiff $600 less than, under the fact conceded' by it, was due her.
The same fundamental principles govern in “accord and satisfaction” whether the claim be liquidated or unliquidated. In either there must be considerations, and in each these are mutual concessions. In the case of unliquidated claims there may be, and often are, concessions of positions taken by parties to the controversy. The controversy may relate either to the law or- the facts, and the concessions may be of either. If, however, the settlement be for less than the undisputed debt, or if the sole dispute is due to a sham claim of legal exemption put forward by one of the parties, there can be no mutual concessions hence no consideration. Such is the case before us. Had the settlement been for more than defendant claimed was due, or had its claim of legal exemption been made in good faith, a different case would have been presented.
Defendant having paid less than its conceded liability plaintiff’s release (of the remainder was without considera
The judgment is affirmed.
Mr.* Chief Justice Teller and Mr. Justice Allen concur.