Bishop v. Agricultural Ins. Co.

• Decision Date: 20 January 1892
• Citation: 29 N.E. 844,130 N.Y. 488
• Parties: BISHOP v. AGRICULTURAL INS. CO.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 488

29 N.E. 844

BISHOP

v.AGRICULTURAL INS. CO.

Court of Appeals of New York,

Second Division.

Jan. 20, 1892.

Appeal from supreme court, general term, fifth department.

Action on a fire insurance policy by Emory J. Bishop against the Agricultural Insurance Company. From a judgment of the general term affirming a judgment of the special term for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by FOLLETT, C. J.:

October 15, 1887, the plaintiff's barn and its contents were destroyed by fire, at which time the property was insured by the defendant for $3,100, under a policy known as ‘Standard Fire Insurance Policy of the State of New York.’ October 17th the plaintiff gave personal notice of the loss to Samuel E. Clark, defendant's local agent, who effected the insurance, and requested him to inform the defendant of the fire, which he agreed to do, and immediately did. On the 21st of that month, Addice E. Dewey, defendant's general agent and adjuster, called on the plaintiff, pursuant to the notice, and had an interview about settling the loss. The plaintiff testified, and in this he was not disputed, that the liability of the defendant was not denied; the only controversy being over the value of the property destroyed, which it was agreed should be appraised pursuant to the following provision in the policy: ‘In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraiser, respectively, selected by them, and shall bear equally the expenses of the appraisal and umpire.’ The plaintiff and the defendant, by its general agent and adjuster, on that day entered into a written contract, of which the following are the material parts: ‘It is hereby agreed, by Emory J. Bishop, of West Barre, of the first part, and the Agricultural Insurance Company of Watertown, New York, of the second part, that David I. Langworthy, together with Charles H. Headley, (with a third person, to be appointed by them before the appraisal, who shall umpire on matters of difference only,) shall appraise and estimate, at the actual cash value, the damage by fire on the 15th day of October, 1887, to the property belouging to said Emory Bishop, as specified herein; which appraisement or estimate by them, or any two of them, in writing, as to the amount of such loss or damage, shall be binding on both parties; it being understood that this appointment is without reference to any other question or matter of difference within the terms and conditions of the insurance, and is of binding effect only as far as regards the actual cash value of or damage to such property; * * * returning said damage in the form of a detailed statement and in accordance with this agreement.’ The plaintiff selected Charles H. Headley, and the defendant David I. Langworthy, for appraisers. November 4th, Langworthy called on Headley at Medina, a village 10 miles from the plaintiff's residence, for the purpose of first selecting an umpire, and then going to the scene of the fire, and appraising the value of the property destroyed. Headley, being on that day engaged in a lawsuit, declined to proceed with the business, but agreed that he would on some day thereafter. Langworthy and defendant's local agent then called on the plaintiff at his home, and made some investigation into the value of the property destroyed. Nothing further was done until November 28th, when Headley wrote Langworthy, declining to act as an appraiser, and thereupon the latter wrote that fact to the plaintiff, and requested the selection of another. December 22d the plaintiff telegraphed Langworthy that he had secured another appraiser, and asked when he would make the appraisal. Thereupon Langworthy appointed December 30th, pursuant to which he met the plaintiff at Medina, and Alderson Nixon was selected in the place of Headley, and his name inserted in the written agreement. Nixon and Langworthy separated on that day without agreeing upon an umpire. Nothing further was done in the matter until January 24, 1888, when Langworthy inquired of Nixon by letter why he had not heard from him, and suggested that the matter should be closed up. February 6, 1888, proofs of loss sufficient in form and substance were served on the defendant, but were rejected on the sole ground that they were not served within 60 days after the fire. February 23d, Langworthy again wrote Nixon, suggesting that the appraisal should be closed, but, hearing nothing, again wrote, on March 12th, insisting on the same thing....