Remington v. The Westchester Fire Ins. Co.

• Decision Date: 14 July 1883
• Citation: 14 R.I. 245
• Court: Rhode Island Supreme Court
• Parties: REMINGTON & PERKINS v. THE WESTCHESTER FIRE INSURANCE COMPANY.

14 R.I. 245

REMINGTON & PERKINS v. THE WESTCHESTER FIRE INSURANCE COMPANY.

Supreme Court of Rhode Island.

July 14, 1883

An adjustment of loss under a policy of insurance must be made with full knowledge on the part of the insurer of all the facts material to the right of the insured to recover.

Such an adjustment can be impeached only for fraud or for mistake in a material fact.

After an adjustment had been made the insured brought assumpsit on an account stated to recover the adjusted amount. The defendant pleaded that the adjustment was made without any disclosure on the part of the insured of facts which were recited in the plea tending to show that the fire was caused by the wrongful acts of the insured. To this plea the plaintiff demurred.

Held, that the demurrer should be sustained, as the statements of the plea might be true and the plaintiff still entitled to recover under the policy.

ASSUMPSIT. On demurrer to the plea.

An adjustment of a loss, made by the insurer with full knowledge of the facts, can be impeached only for fraud or mistake.

James G. Markland & Charles H. Parkhurst, for plaintiffs, in support of the demurrer.

Charles Hart & George H. Browne, for defendant, contra .

I. An adjustment of a loss made in writing is only binding upon parties when made with full knowledge of all the circumstances, and intended by the parties to be absolute and final. 2 Phillips on Insurance, § 1815, and cases cited.

The defendants set forth in their plea that there were certain facts, unknown to them at the time of making the adjustment which tended to show that the alleged loss arose from the wrongful acts of the plaintiffs. The issue on the plea if traversed would be, not whether the facts set forth in the plea would conclusively establish that the loss arose from the wrongful acts of the plaintiffs, but whether such facts existed unknown to the defendants at the time of making the adjustment, and which might reasonably have operated on the mind of the defendants to have prevented the making of an unqualified adjustment, thereby concluding their liability under the policy.

II. The objections to the form of the plea raised by the demurrer are immaterial; for whether sound or not, under our stat ute of amendments, Pub. Stat. R.I. cap. 210, § 4, the demurrer must be overruled. Marchant, Trustee, v. The Valley Falls Baptist Church, 6 R.I. 24.

CARPENTER J.

This is assumpsit on an account stated. The defendant files the following plea, to which the plaintiff demurs:

" And for a further plea in that behalf, by leave of court, & c., said defendant corporation comes and defends, & c., when, & c., and says that said plaintiffs' cause of action as set forth in the first count of their declaration in said action, if any they have therein, was founded on, arose from, and depended on a certain contract of insurance set forth in, and evidenced by, a certain policy of insurance numbered 1868, and issued by said defendant corporation to plaintiffs, and in the possession of said plaintiffs, dated the fifth day of September, A. D. 1872, and an alleged loss of, or damage by fire and water to, the property named in and covered by said contract and policy, occurring on the 28th day of June, A. D. 1873, and at no other time, and from no other cause; and that said

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