106 Pa. 20 | Pa. | 1884
delivered the opinion of the court,
The contract of the parties litigant is to be found in the policy, and the conditions thereto attached, and to the terms and provisions of the agreement, as found in those papers, both parties must be held or neither. The insurance company can only be made responsible for the alleged loss, under the policy, by a showing by the Weiss Brothers of the performance of the conditions of that instrument on their part. To hold otherwise would be a mere travesty of justice. The principle here stated is not, indeed, denied, but an attempt has been made to avoid its effect by the interposition of the doctrine of estoppel. It is said, and so the court below permitted the jury to find, that the defendant, through its chief officer, acted in such a manner as to induce the plaintiffs to believe that it had or would waive the conditions, the breaches of which are now set up as a defence, and that it was thus estopped from taking advantage of the alleged want of conformity to the contract an part of the plaintiffs.
We think these objections to the plaintiffs’ effort to escape from the plain terms of their agreement are sound, and should have been so treated in the court below. For further answer to the interrogatory above proposed, it is said: The policy is a valued one, and for that reason an itemized statement of loss was not necessary. We, however, cannot regard this as a valued policy. We have in the case of buildings, where there was a total loss, held that the policies were of this nature, and this for the reason that when the assured had given notice of the total loss of the building covered by the policy, he could do no more; there are, in such case, no particulars to detail, hence, further notice cannot in reason be required. But we have never so held with reference to the contents of a building consisting, as in this case, of a variety of articles. And though this term “ valued policy ” has been used as above stated, yet it does not strictly apply, for its proper application is to such cases only where a valuation is fixed upon the underwritten property by way of liquidated damages, and for the purpose of avoiding a subsequent valuation of the property in case of loss: 2 Bouv. L. Diet., 845. Of course, where such is the contract of the parties they must be held to it, but that such is not the nature of the policy under consideration is obvious from the very terms of it.
The second of our questions remains wholly unanswered; for there is not even the pretence of the waiver of that condition which required suit to be brought within six months after the loss. This is an independent condition and cannot be made to depend on the waiver of precedent conditions. Had the loss been regularly adjusted, as provided for by the policy, still the limitation was in force; suit must have been brought within the time prescribed, and the neglect of this provision must necessarily, if a contract of this kind is woxtli anything, bar a right of action on part of the assured.
To say, therefore, that Crosse’s agreement to send a check for the amount of the loss, in any way affected this stipulation, or to submit such a question to the jury, was a mistake. Insurance Co. v. Conover, 2 Out., 384.
As what we have already said, disposes of the case radically, and sustains the defendant’s 18th point, we are relieved from a more particular discussion of the assignments.
The judgment is reversed.