Beauchamp v. Retail Merchants Association
| Decision Date | 20 October 1917 |
| Court | North Dakota Supreme Court |
Rehearing denied December 14, 1917.
From a judgment of the District Court of Cavalier County, Honorable W. J. Kneeshaw, Judge, defendant appeals.
Affirmed.
Pierce Tenneson, & Cupler, for appellant.
All of the defenses alleged in the answer are based upon facts within the knowledge of plaintiff, and he therefore cannot claim to be surprised.
When one has full knowledge of all the facts set out in the amendments, he is in no position to claim surprise. Ennis v. Retail Merchants Asso. Mut. F. Ins. Co., 33 N.D. 20 156 N.W. 234; Southern Ins. Co. v. Hastings, 64 Ark. 253, 41 S.W. 1093.
But if one can honestly claim surprise he should at once ask for continuance for a reasonable time to prepare. Helbig v Grays Harbor Electric Co., 37 Wash. 130, 79 P. 612; Straus v. Buchman, 96 A.D. 270, 89 N.Y.S. 226, 184 N.Y. 545, 76 N.E. 1109; 31 Cyc. 751, note 45; 1 Hayne, New Tr. & App. § 54, p. 272.
"The mere fact that the amendment constitutes a departure in pleading, or adds or substitutes a new or different cause of action in the strict sense of those terms, is no good reason for disallowing the amendment." Cooke v. Northern P. R. Co., 22 N.D. 266, 133 N.W. 306; 2 Elliott, Ev. 920; Rae v. Chicago, M. & St. P. R. Co., 14 N.D. 507, 105 N.W. 721; Kerr v. Grand Forks, 15 N.D. 294, 107 N.W. 197; Martin v. Luger Furniture Co., 8 N.D. 220, 77 N.W. 1003; Anderson v. First Nat. Bank, 5 N.D. 80, 64 N.W. 114; Webb v. Wegley, 19 N.D. 606, 125 N.W. 562; Southern Ins. Co. v. Hastings, 64 Ark. 253, 41 S.W. 1093; 19 Cyc. 931.
They may be allowed after the evidence is in. 31 Cyc. 398 to 406; Farmers' Nat. Gold Bank v. Stover, 60 Cal. 387; Comp. Laws 1913, §§ 7181, 7482, 7483.
"A provision in a surety bond, requiring notice of default to the surety, is one to be performed after the occurrence of the loss or damage for which recovery is sought; and, while a condition precedent to the maintenance of an action, pertains to the remedy, and is not essential to the binding force of the contract prior to default, and is not as strictly construed as the conditions involving the essence of the agreement." Van Buren County v. American Surety Co., 137 Iowa 490, 126 Am. St. Rep. 290, 115 N.W. 24; 1 Clement, Fire Ins. p. 410; Ennis v. Retail Merchants Asso. Mut. F. Ins. Co., 33 N.D. 31, 156 N.W. 234; 14 Mod. Am. Law, 46, Waiver & Estoppel.
"An invoice of goods purchased is not an inventory of stock to be produced under the 'iron-safe clause' in an insurance policy." Southern F. Ins. Co. v. Knight, 111 Ga. 622, 52 L.R.A. 70, 78 Am. St. Rep. 216, 36 S.E. 821; Scottish Union & Nat. Ins. Co. v. Weeks, 55 Tex. Civ. App. 263, 118 S.W. 1086; Phoenix Ins. Co. v. Sherman, 110 Va. 435, 66 S.E. 81; German American Ins. Co. v. Fuller, 26 Okla. 722, 110 P. 763; Houff v. German American Ins. Co., 110 Va. 585, 66 S.E. 831; Teutonia Ins. Co. v. Tobias, Tex. Civ. App. , 145 S.W. 251.
If the destruction of the inventory and books was due to the negligent failure of the insured to preserve them as required by the "iron-safe clause," his failure to produce them in accordance with the provisions of the policies will preclude any recovery thereon. Southern F. Ins. Co. v. Knight, 111 Ga. 622, 52 L.R.A. 73, 78 Am. St. Rep. 216, 36 S.E. 821; Arkansas Ins. Co. v. Luther, 85 Ark. 579, 109 S.W. 1022; Shawnee F. Ins. Co. v. Kneer, 72 Kan. 385, 83 P. 611, 613; Goldman v. North British Mercantile Ins. Co., 48 La.Ann. 223, 19 So. 132; King v. Concordia F. Ins. Co., 140 Mich. 258, 103 N.W. 616, 6 Ann. Cas. 87; Aetna Ins. Co. v. Mount, 90 Miss. 642, 15 L.R.A. (N.S.) 471, 44 So. 162, 45 So. 835; Cobb & S. shoe Store v. Aetna Ins. Co., 78 S.C. 388, 58 S.E. 1099; Western Assur. Co. v. Kemendo, 94 Tex. 367, 60 S.W. 661, reversing Tex. Civ. App. , 57 S.W. 293; Continental Ins. Co. v. Cummings, 98 Tex. 115, 81 S.W. 705, reversing Tex. Civ. App. , 78 S.W. 378; Rives v. Fire Asso. of Philadelphia, Tex. Civ. App. , 77 S.W. 424; Allred v. Hartford F. Ins. Co. Tex. Civ. App. , 37 S.W. 95; Fire Asso. of Philadelphia v. Calhoun, 28 Tex. Civ. App. 409, 67 S.W. 153; Yates v. Thomason, 83 Ark. 126, 102 S.W. 1112; St. Landry Wholesale Mercantile Co. v. New Hampshire F. Ins. Co., 114 La. 146, 38 So. 87, 3 Ann. Cas. 821.
"A mere offer to compromise is not a waiver of breaches of the conditions of the policy." 19 Cyc. 804, 805; McCormick v. Orient Ins. Co., 86 Cal. 260, 24 P. 1003.
Neither can the conduct of the company's agent or adjuster, in trying to effect a compromise settlement, be regarded as a waiver. City Drug Store v. Scottish Union & Nat. Ins. Co. Tex. Civ. App. , 44 S.W. 21; Holbrook v. Baloise F. Ins. Co., 117 Cal. 561, 49 P. 555.
Grimson & Johnson, and Linde & Murphy, for respondent.
Special defenses must be specifically set forth in the answer in order to be available in an action on the policy. Ennis v. Retail Merchants Asso. Mut. F. Ins. Co., 33 N.D. 20, 156 N.W. 234.
A defense based upon a failure to comply with the so-called "iron-safe clause" in the policy is merely technical. 1 Hayne, New Tr. & App. § 54, p. 272; Ennis v. Retail Merchants Asso. Mut. F. Ins. Co. supra; Comp. Laws 1913, § 7482.
No representations or warranties in the application or policy can be deemed material so as to defeat or avoid such policy, where, as in this case, no contention is or can be made that the insured made the same with intent to deceive, or that matters claimed to have been misrepresented or warranted against increased the risk of loss. Continental F. Ins. Co. v. Whitaker, 112 Tenn. 151, 64 L.R.A. 451, 105 Am. St. Rep. 916, 79 S.W. 119, and cases cited; Comp. Laws 1913, § 6501; Soules v. Brotherhood of American Yeoman, 19 N.D. 23, 120 N.W. 760.
It has also been held that, in order to work a forfeiture of the policy, there must be a failure of not only one, but of all, the conditions of the clause. Connecticut F. Ins. Co. v. Jeary, 60 Neb. 338, 51 L.R.A. 698, 83 N.W. 78.
On July 29, 1914, the defendant issued to the plaintiff an insurance policy of the usual standard form adopted in this state, whereby it insured the plaintiff against loss or damage by fire in the sum of $ 3,000, upon a certain stock of merchandise in plaintiff's store at Olga, in Cavalier county, in this state. The stock was also insured in the sum of $ 2,500 by another insurance policy issued by the Northwestern Mutual Fire Insurance Company. This latter policy also insured household goods belonging to plaintiff in the sum of $ 500. On January 22, 1915, the stock of merchandise was, together with the building wherein it was contained, accidentally, totally destroyed by fire. The plaintiff immediately notified the defendant, and the Northwestern Mutual Fire Insurance Company of the loss and these two companies sent their adjuster, one Larkin, to adjust the losses. Larkin arrived about three weeks after the fire. Upon his arrival at Olga he asked for the books of account, and was informed by the plaintiff that they were in the safe, which was still lying on the ground, close to the place where the fire had occurred. A blacksmith was sent for, who broke open the safe, and Larkin and the plaintiff took the books and papers to plaintiff's house and looked them over. In examining the books it was discovered that a book in which plaintiff kept the record of his purchases had been destroyed by the fire. Plaintiff informed Larkin that this book had been left on the plaintiff's desk, the night the fire occurred. The safe, however, contained a ledger in which accounts were kept of all the goods sold on time, and the plaintiff informed Larkin that the cash received from cash sales had been deposited in the Bank. Larkin, upon receiving this information, went to the bank and examined the bank books to ascertain the amount of such sales. Larkin arrived at Olga in the forenoon, and left on the morning of the day following. Before leaving he requested plaintiff to accompany him to Grand Forks. Two versions are given of the reasons for such request. Plaintiff says: "He asked me if I would go with him to Grand Forks or Fargo, and look over the ledger, and he said we had some work to do, and that we could do it better there, and I went with him." Larkin says that some discussion arose with respect to the last inventory taken in March, 1914; that plaintiff stated he believed that this inventory had been sent to the Grand Forks Mercantile Company, and that it was principally for this reason that he suggested that plaintiff accompany him to Grand Forks. The Grand Forks Mercantile Company, however, did not have such inventory. Mr. Larkin thereupon requested that he (plaintiff) write the various wholesale houses and obtain from them statements or inventories of the goods which they had sold to the plaintiff since the last inventory was taken on March 1, 1914, and Larkin prepared a form of the letter to be so sent. Plaintiff acted in accordance with this request, and prepared and sent letters to the various wholesale houses, and obtained statements or inventories from them. He also obtained statements from the bank. These statements and inventories he submitted to Larkin. At Larkin's request plaintiff came to Fargo, where they went over the whole matter. Larkin testified that, from the information furnished him by the plaintiff, he determined that the goods destroyed were worth $ 4,204.62. The policies limited the liability of the insurers to three fourths of the actual value of the goods insured, and, hence, Larkin fixed the amount of liability of the companies under the two policies at $ 3,153.47; defendant's proportion...
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