Providence Washington Ins. Co. v. Board of Ed. of Morgantown School Dist.
Decision Date | 25 March 1901 |
Citation | 38 S.E. 679,49 W.Va. 360 |
Parties | PROVIDENCE WASHINGTON INS. CO. et al. v. BOARD OF EDUCATION OF MORGANTOWN SCHOOL DIST. |
Court | West Virginia Supreme Court |
Syllabus by the Court.
1. When parties have made a written agreement, the writing is regarded as the exclusive evidence of the contract, and all oral negotiations and stipulations preceding or accompanying the execution of the written agreement are merged in it, and are not admissible in evidence. See, also, Long v Perine, 23 S.E. 611, 41 W.Va. 314 (Syl., point 1).
2. In case of loss by fire under a policy containing a provision allowing the insurer to repair, rebuild, or replace the injured building, and containing also a provision that the loss or damage should in no event exceed what it would then cost the insurer to repair or replace the same with material of like kind and quality, if the insurer should waive the right to repair or rebuild, and agree to pay the amount of loss and damages in cash, that fact would not change the basis of estimating the loss and damages, and the same should be ascertained precisely in the same manner as if it were the purpose to repair, rebuild, or replace the structure.
3. There is no total loss of a building, requiring payment in full amount of the policy of insurance, if the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury.
4. Whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the injury would, in proceeding to restore the building to its original condition, utilize such basis.
5. When an umpire or arbitrator exceeds his authority, the effect of his act is the same, whether it was done consciously or by mistake, as in either case his award is void.
6 Syl., points 1, 5, 6, Wheeling Gas Co. v. City of Wheeling, 5 W. Va. 448, approved.
Appeal from Circuit Court, Monongalia county; J. M. Hagans, Judge.
Action by the Providence Washington Insurance Company and others against the board of education of the Morgantown school district. Judgment for defendant. Plaintiffs appeal. Reversed.
Caldwell & Caldwell and Okey Johnson, for appellants.
George C. Sturgiss, Cox & Baker, and Lazelle & Stewart, for appellee.
The board of education of the Morgantown school district procured from Providence Washington Insurance Company insurance in the amount of $4,000 on its two-story, tin-roofed public-school building, on the east side of Spence street, in Morgantown, W. Va., against loss or damage by fire, by policy dated December 24, 1894, to run three years from that date; and at the same time said board of education procured insurance on same building from Fireman's Fund Insurance Company of San Francisco, Cal., by policy of same date in the sum of $3,300, and $700 on the school furniture and fixtures in said building, which insurance was also for three years from said 24th day of December, 1895. On the 11th day of January, 1897, a fire occurred in said building, burning the roof and attic. On the 19th day of January, 1897, the said insurance companies, by D. G. Morgan, their agent, entered into an agreement, in writing, bearing date on that day, with said board of education, which agreement, omitting the signatures, and also showing the oaths of the appraisers, and the selection and oath of the third appraiser, omitting the jurat in each case, and the award of the appraisers, are as follows:
The said insurance companies filed their bill in the circuit court of Monongalia county against the said board of education, praying it be made a party defendant to the bill and required to answer the same, and that said board, as a corporation, its agents, attorneys at law, and all others, be enjoined and restrained from bringing or prosecuting any suit in any court of this state for the recovery of the amount of said pretended award mentioned and described in the bill and exhibits; that proper process issue; that all proper orders be made and entered, and accounts directed and taken; that said pretended award be set aside and declared to be null and void; that the cause be referred to a commissioner of the court, with directions to ascertain and report the amount of loss sustained by the defendant in same upon the basis fixed by, and according to the terms and conditions of, the policies of insurance; and for general relief. The injunction was accordingly granted. The policies are filed as exhibits with the bill. The policy of the Providence Washington Insurance Company agrees to make good unto the said assured "all such immediate loss or damage, not exceeding in amount the sum insured, nor the interest of the assured in the property, except as herein provided, as shall happen by fire to the property above specified from the 24th day of December, one thousand eight hundred and...
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