57 Kan. 95 | Kan. | 1896
The opinion of the court was delivered by
The defendants in error brought suit against the plaintiff in error to recover $2,800 claimed under a policy of insurance — $2,000 on a general stock of merchandise, and $800 on furniture and fixtures, alleged to have been destroyed by fire on-the 25th day of May, 1891. A copy of the policy was attached to the petition, and its execution was admitted by the defendant. The petition alleges that due notice of the fire was given in accordance with the terms of the policy ; that proofs of loss were made as required ; that the plaintiff had performed all the conditions of the policy on his part; and that the defendant, through its agents, had examined the plaintiffs under oath as to the amount and cause of the loss, and refused to pay the same, and thereby waived all proofs
“In case of failure to agree the said damage shall be appraised on each article by disinterested appraisers mutually agreed upon, whose detailed report in writing shall form a part of the proofs required to be furnished by the claimant; one-half of the appraisers’ fees to be paid by the insurers. . . . Payment of losses shall be made in 60 days after the loss shall have been ascertained and proved, and in case differences shall arise touching the amount of any loss or damage, it shall be submitted to the judgment of arbitrators mutually chosen, whose award in writing shall be binding on the parties. . . . It is furthermore, hereby expressly provided and mutually agreed, that no suit or action against this company for the recovery of any claim for loss, by virtue of this policy, shall be sustainable in any court of law or chancery, unless an award of damages by arbitrators as herein provided for shall first have been returned.”
There is no claim on the part of the plaintiffs below that any award was ever made, or that any request was made by either party that appraisers or arbitrators should be chosen. It was claimed, however, by them that the adjusters who came to Marion, where the plaintiffs live, and where the property destroyed was situated, and examined into the circumstances of the loss, had denied all liability under the policy, and that they thereby waived the conditions of the policy with reference to arbitration and proofs of loss. The
There certainly was a disagreement between the parties as to the amount of the plaintiffs’ loss, and as to the value of the property destroyed by the fire, so that the provisions of the policy with reference to arbitration clearly apply. Are they valid and enforceable ? Is arbitration a condition precedent to the plaintiffs’ right of recovery ? The learned counsel for the plaintiff in error cites a long list of authorities to sustain his position. We shall notice only so many of them as seem necessary to illustrate the current of decisions on this subject. The case of Insurance Co. v. Clancy, 71 Tex. 5, was an action on a policy providing that, unless the amount of damage should be agreed upon, it should be appraised by disinterested and competent persons, one to be selected by the company, one by the assured, and, when either party demanded it, the two so chosen 'to select an umpire, and the award of -any two to be binding. This appraisal was to form a part of the proofs of loss, and to be made before the loss should be payable. It was held a valid provision, and that no action could be maintained if the insured, upon demand made for such appraisement, refused to comply therewith, and that the appraisement was a condition precedent to the plaintiff’s right of recovery. The case of Manufacturing Co. v. Assurance Co., 106 N. C. 28, is to the same-effect. In the case of Chippewa Lumber Co. v.
"In case differences shall arise touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial arbitrators, whose award in writing shall be binding on the parties as to the amount of such loss or damage, but shall not decide the liability of the company under this policy.”
It then provided that no action should be maintained until after an award. It was held that an award was not a condition precedent to a recovery,
No attempt was made to arbitrate in this case, and we think the provisions of the policy are without any binding force, for two reasons : First, they are vague and indefinite ; and second, they place it within the power of either party effectually to defeat any submission to arbitration merely by refusing to consent to the number of arbitrators named by the other party, or to agree to the persons suggested. Neither' party should be charged with unfairness because of a refusal to accept as arbitrators persons suggested by the other. No means are provided for bringing the parties to terms and securing arbitrators should they attempt to do so. It is. like requiring two persons to enter into a new contract, the terms of which either one is at full liberty to accept or reject.
We find no substantial error in the record, and affirm the judgment.