Manley v. Vermont Mut. Fire Ins. Co.

• Decision Date: 02 February 1900
• Citation: 62 A. 1020,78 Vt. 331
• Parties: MANLEY v. VERMONT MUT. FIRE INS. CO.
• Court: Vermont Supreme Court

62 A. 1020

78 Vt. 331

MANLEY

v. VERMONT MUT. FIRE INS. CO.

Supreme Court of Vermont. Windham.

Feb. 2, 1900.

Exceptions from Windham County Court; John H. Watson, Judge.

Action by Prucius W. Manley against the Vermont Mutual Fire Insurance Company. From a judgment for defendant for costs after tender, plaintiff brings exceptions. Reversed.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, HASELTON, and POWERS, JJ.

F. D. E. Stowe, for plaintiff. E. L. Waterman, J. L. Martin, and E. W. Gibson, for defendant,

POWERS, J. The plaintiff took out a fire insurance policy in the defendant company, covering certain property in Dummerston. On the 13th day of July, 1902, during the life of the policy, the property was totally destroyed by fire. The next day the plaintiff gave the company's agent at Brattleboro notice of the fire, and, with the assistance of the defendant's regular adjuster, who happened to be in the vicinity, made out, on blanks furnished by the adjuster, a sworn proof of loss in due form showing, among other things, four items of damage, aggregating, according to the plaintiff's valuation, $500.37, to which was appended the following statement, signed by the plaintiff: "It is hereby agreed that if the said company [defendant] allow the sum of $500.37 on this claim it shall be accepted by the undersigned as a full, final adjustment of the same. Payment to be made agreeable to the rules and regulations, and in accordance with the act of incorporation and by-laws of said company. The amount allowed to be cancelled from the policy." No question, controversy or dispute arose between the adjuster and the plaintiff as to the company's liability for the loss, or the amount of damage suffered by the plaintiff as shown by the proof of loss, nor has the company since questioned its liability for that amount On the 4th day of August, 1902, the defendant mailed to the plaintiff a notice that the directors had allowed the sum stated, inclosing a receipt in full for him to execute and return, and informing him that the company's check would be forwarded to him upon the return of such receipt properly executed, which notice was received by the plaintiff in due course of mail. It was claimed at the trial below by the defendant's counsel that this receipt was signed by the plaintiff and returned to the company, agreeably to such notice, and as this was not denied and was apparently treated by the court as a concession of fact, we so regard it, though no evidence concerning the receipt was received.

It was alleged in the defendant's notice of special matter, filed with the general issue, that on the 8th day of September, 1902, the defendant mailed to the plaintiff its check for the amount called for by the proof of loss, which the plaintiff claimed was never received by him, and that on the 17th day of October, 1902, the defendant executed another check for the same amount and offered it to the plaintiff, with interest from the date the loss became payable, which the plaintiff declined. Allusion was made to these checks by the defendant's counsel in the trial below, but the plaintiff's counsel expressly denied that the check was ever tendered to the plaintiff, and no proof was made concerning either of them, so we do not regard them as in the case. On the 27th day of December, 1902, the plaintiff filed with the company an additional proof of loss purporting to cover articles of persona, property not included in the original proof and omitted therefrom by mistake. Payment of this loss became due according to the rules and charter of the company, October 14, 1902. This suit was brought January 17, 1903, and on August 6, 1903, a tender of the amount called for by the original proof of loss, with interest and costs to that date, was duly made by the defendant, and the same kept good as required by law. On these facts, the trial court held the agreement of July 14th, above recited, to be binding upon the plaintiff, and...