52 N.C. 433 | N.C. | 1860
The execution of the covenant declared on, and the loss by fire of the building insured, were proved, and the defendants, for their defense, *335 alleged that the plaintiff had not complied with the stipulation contained in the contract to give the company notice of the destruction of the property, also a statement of the particulars of the destruction; and they relied on the following clauses of the policy and annexed (434) conditions. In the policy is provided: "This policy is made and accepted in reference to the conditions hereunto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto in all cases not herein otherwise specially provided for."
The condition relied on in their defense as being annexed to the contract of assurance is as follows: "10. All persons insured by this company, and sustaining loss or damage by fire, are forthwith to give notice thereof to the secretary, and within thirty days after said loss to deliver a particular account of such loss or damage, signed with their own hands and verified by their oath or affirmation."
The evidence was that after the expiration of twenty days the insured furnished the company with the affidavit containing the particular account of the loss, but there was no evidence that any other notice of the loss was given by the insured to the company. His Honor held that the notice furnished was a compliance with the terms of the contract on the part of the plaintiff. Defendant excepted.
Verdict and judgment for plaintiff, and appeal by the defendant.
We differ from his Honor upon the first point made by the defendant. The affidavit, etc., furnished by the plaintiff and forwarded to the secretary of the company was not, in the opinion of this Court, a full compliance with the condition of the policy which requires "all persons sustaining loss or damage by fire forthwith to give noticethereof to the secretary, and within thirty days after the loss to deliver a particular account of such loss or damage, signed with their own hands and verified by oath or affirmation," etc. This condition imposes two duties; the latter was complied with, but the former was not, and, consequently, the plaintiff was not entitled to recover, according (435) to the decision in Woodfin v. Ins. Co.,
The first, or general, notice is required to be given "forthwith," to enable the company, as soon after the loss as practicable, to institute proper inquiry; and the second, or particular notice, within thirty days. It was not proven that any notice was given until after the expiration of some twenty days. This certainly does not satisfy the word "forthwith," which must be construed, considering the purpose for which it is *336 required, to mean immediately, or within reasonable time; and, under the circumstance, the rule which has been adopted in regard to bills of exchange, i.e., on the same day, if in the same town, or else by the next mail, would seem to furnish a fit analogy. As this point is decisive, we will not enter upon the other, especially as the statement made up by his Honor, and his charge in reference to it, are not so clearly set out as to enable us to see that we understand it.
PER CURIAM. Venire de novo.
