Lead Opinion

FROM ROCKINGHAM CIRCUIT COURT. The writ and pleadings are not referred to as part of the case, and no question is raised in regard to the sufficiency of the declaration. The only question is as to the judgment to be rendered.

I think in this case the defendants, after, by a unanimous vote of the corporation, withdrawing all overtures and propositions for a compromise, are estopped to say that they had determined the amount of damages. When the defendants withdrew all their propositions of every kind, the plaintiff certainly had a right to act upon their withdrawal. Even supposing that the defendants, having once determined the amount, could not afterward annul that determination, still they might refuse to abide by it, and the plaintiff might thereupon bring his action against them for violating the contract. If he had alleged in his declaration that the defendants had determined the amount, that might conclude him, but no objection is taken to the declaration.

Concurrence Opinion

The vote of the directors, passed December 9, 1873, does not show that they ascertained and determined the amount of the plaintiff's loss, within the fair meaning of their constitution. That they understood that vote to be just what it purports to be, namely, an offer of settlement rather than a quasi judicial determination of the amount of the loss, is most clearly shown by their vote of Jan. 12, 1874, whereby all "offers they had made the plaintiff" were expressly withdrawn. For this reason I think the pro forma ruling of the circuit court, denying the nonsuit, was right.

Concurrence Opinion

The vote of December 9, 1873, was not an ascertainment and determination of the plaintiff's loss and damage, as contemplated by article 5 of the constitution of the company. It was nothing more than an offer by the defendants to pay the plaintiff a certain sum in full satisfaction of his loss or damage. It is clear the defendants so understood it at the time, for, at their meeting of December 14, 1873, the directors voted to refer the matter to referees, because of the refusal of the plaintiff to accept their offer. And on January 17, following, they voted unanimously to withdraw all offers made to the plaintiff.

The 5th article provides that the insured shall give notice of any loss or damage within thirty days from the time it may happen; and the directors, upon view, or in such other manner as they may deem proper, shall ascertain and determine the amount of such loss or damage. The plaintiff seasonably gave the notice, and, after the unreasonable neglect of the defendants to ascertain and determine his loss or damage, could bring his suit to recover therefor. No objection was taken at the trial that there was no averment in the declaration of such unreasonable neglect. I think the exception must be overruled.

Judgment on the verdict. *Page 163