Gerhart Realty Co. v. Northern Assur. Co.

• Decision Date: 29 April 1902
• Citation: 68 S.W. 86,94 Mo. App. 356
• Parties: GERHART REALTY CO. v. NORTHERN ASSUR. CO.
• Court: Missouri Court of Appeals

68 S.W. 86

94 Mo. App. 356

GERHART REALTY CO. v. NORTHERN ASSUR. CO.

Court of Appeals of St. Louis, Missouri.

April 29, 1902.

ACCORD AND SATISFACTION — FIRE INSURANCE — SETTLEMENT OF LOSS — RIGHT TO SUE ON POLICY.

Where an insurance company agreed to settle a fire loss by paying its proportion of the cost of repairing the building, but there was no stipulation to accept such agreement as a discharge of the loss, upon the company's refusal to pay such costs the insured could sue on the policy.

Appeal from St. Louis circuit court; W. C. Douglas, Judge.

Action by the Gerhart Realty Company against the Northern Assurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

T. C. & C. H. Fauntleroy, for appellant. Marion C. Early, for respondent.

GOODE, J.

The building owned by the respondent company, on which it held a policy of insurance in the appellant company, was damaged by a fire; and afterwards an agreement was made between the president of the realty company and an adjuster or general agent of the assurance company by which the former was to repair the property forthwith, and the latter to pay its proportion of the cost of repairs, — there being insurance in other companies on the building. The realty company took a bid from a firm of contractors to make the repairs for $780, which there was evidence to show was, by the assurance company's agent, assented to as reasonable, and the repairs were accordingly made. Afterwards the same adjuster who had assented to said arrangement, and, in consideration thereof, agreed to waive an appraisement of the loss, and proofs thereof, refused to pay the appellant company's proportion of the cost of the repairs; giving as reasons that there never had been an appraisement of the loss, and that the bill was excessive. The realty company thereupon brought suit on the policy. The case was in this court on appeal heretofore, and will be found reported in 86 Mo. App. 596. At the second trial exactly the same evidence was introduced as on the first trial. In fact, it was submitted on the evidence contained in the bill of exceptions.

Appellant's counsel very earnestly insists that the decision on the first appeal ought to be revised, but, after careful attention to his able argument and brief, we remain convinced the decision was sound. The position taken is that after the agreement was entered into by the president of the realty company and the adjuster of the assurance company that...