174 Mass. 263 | Mass. | 1899
The defendant is a foreign insurance company with its principal office in Toronto, Canada. At the time of the issuing of the policy and of the loss it had a general agent in Boston and a local agent, one Fay, in Lawrence where the property was situated. The defendant does not contend now, as we understand it, that the policy did not attach and that a loss has not occurred under it. Its contention is that proofs of loss have not been furnished as required by the policy, and that there has been no arbitration to determine the amount of the loss which is a condition precedent to the bringing of an action in case the parties fail to agree upon the amount of the loss.
There was evidence tending to show that on the morning after the fire the plaintiff notified Fay, the local agent, of it, and that Fay thereupon notified the Boston office, and received from one Dooley, who it was admitted was a special agent or adjuster of the defendant company, a reply saying that the notice of loss had been received and that he would be in Lawrence on the following Tuesday and give the matter attention.
There was also evidence tending to show that Dooley went to Lawrence, and in company with Fay viewed the premises, and afterwards with Fay saw the plaintiff and agreed with him that the amount of the loss should be left to one Flanders, a carpenter, and that the company would settle on the basis of his figures ; that Flanders a few days after handed his figures to Fay, who forwarded them to Dooley, but received no reply either to that or subsequent letters to Dooley, and that nothing more was ever done by Dooley or the company in relation to the matter.
We think that it would have been competent for the jury to find on this evidence that Dooley was sent by the general agent at Boston to Lawrence to investigate and adjust the loss, and that it was within the apparent scope of his authority to waive proofs of loss and to agree upon the amount of the loss, and that
There was nothing left to arbitrate if the plaintiff and Dooley agreed to settle according to the figures of Flanders, and the • condition in regard to arbitration would not therefore apply. Hayes v. Milford Ins. Co. 170 Mass. 492, 497. It is not necessary to consider whether Dooley could have waived it. According to the report, if the ruling of the court that the action could not be maintained was right, then judgment was to be entered on the verdict which was ordered for the defendant, otherwise the plaintiff was to have judgment for four hundred and thirty-five dollars. We think that there should be judgment for the plaintiff for the sum named.
So ordered.