Barnes v. McMurtry

• Court: Supreme Court of Nebraska
• Writing for the Court: MAXWELL
• Citation: 29 Neb. 178,45 N.W. 285
• Decision Date: 19 March 1890
• Parties: BARNES v. MCMURTRY.

29 Neb. 178
45 N.W. 285

BARNES
v.
MCMURTRY.

Supreme Court of Nebraska.

March 19, 1890.

Syllabus by the Court.

1. Where the facts upon which the statute of limitations is predicated do not appear in the petition, but such plea is interposed in the answer as a defense, the time when the statute began to run must be definitely stated; and the mere allegations that the action is barred is not sufficient.

2. To sustain a proviso in a contract that an action thereon must be brought within a time much less than the statute of limitations,--as six months,--there must be a consideration, unless it was within the contemplation of the parties when the contract was entered into; and this rule applies to a policy of insurance.

Error to district court, Lancaster county; FIELD, Judge.

[45 N.W. 285]

George E. Hibner, for plaintiff in error.

Robert Ryan, for defendant in error.

MAXWELL, J.

This is an action upon a policy of insurance. It is alleged in the petition that “the Lincoln Insurance Company, of Lincoln, Neb., is a corporation duly organized and existing under and by virtue of the laws of the state of Nebraska; that said corporation is insolvent, and that said J. H. McMurtry was duly appointed by the district court in and for the county of Lancaster and state of Nebraska as receiver for said corporation; that on the 28th day of February, 1887, Thos. L. Edwards and David J. Adams, under firm name of Edwards & Adams, were the owners of the following described property, viz.: 1 frame building and additions, including boiler-house adjoining, situate on premises of assured at Carleton, Monroe county, Mich., occupied for manufacture of staves and headings and scale boards; also all fixed and movable machinery, shafting, gearing, belting, tools, and apparatus, engines, force-pumps, and connections, and boiler, iron smoke-stack, and fixtures, contained therein; also all steam-boxes and steam-piping and fixtures contained therein, situate about ten feet north of the above-described building; and that said insurance company, on said day, in consideration of the sum of $40 paid by said Edwards & Adams to said Lincoln Insurance Company as a premium, executed and delivered to said Edwards & Adams their policy of insurance, a copy of which is hereto attached, marked ‘Exhibit A.’ Plaintiff further alleges that on the 9th day of August, 1887, said building and contents, as described in said policy, were totally destroyed by fire, and that said fire did not originate by any act, design, or procurement on the part of said Edwards & Adams. That on the 10th day of September, 1887, said Edwards & Adams gave said Lincoln Insurance Company due notice and proof of said fire and loss, and has duly performed all the conditions of said policy of insurance. That said Edwards & Adams' loss by reason of said fire was as follows:

+-----------------------------------------+
                ¦On first item in said policy ¦$133 33¦
                +---------------------------------+-------¦
                ¦On second item of said policy ¦466 67 ¦
                +---------------------------------+-------¦
                ¦On third item of said policy ¦166 66 ¦
                +---------------------------------+-------¦
                ¦On fourth item of said policy ¦91 67 ¦
                +---------------------------------+-------¦
                ¦On fifth item of said policy ¦66 67 ¦
                +---------------------------------+-------¦
                ¦Total loss by reason of said fire¦$875 00¦
                +-----------------------------------------+
                

“That on the 5th day of May, 1888, said policy of insurance, together with all claims for damages on the same, and all the rights and interests thereunder belonging to said Edwards & Adams, was, for value received, duly sold, assigned, and set over to this plaintiff. That no part of said sum of $875 has been paid to said Edwards & Adams, nor to this plaintiff, and said defendant has refused to allow or pay the same, and there is now due to this plaintiff the sum of $875, and interest thereon from the 10th day of November, 1887.”

The sixth and ninth clauses of the alleged conditions, printed in fine print in the policy, are as follows: “In case of loss or damages by fire the assured shall forth with give written notice thereof to the company, and shall use all practical means to save and protect property not destroyed, and within sixty days render an account of the loss, signed and sworn to, stating how the fire originated, giving

[45 N.W. 286]

copies of the written portions of all policies thereon, also the actual cash value and ownership of the property, and the occupation of the premises, and whenever required shall submit to examination under oath, by any person designated by the Co., apart from all other persons except the attesting magistrate or notary, and subscribe thereto when reduced to writing,...