Sun Ins. Office of London v. Merz

• Decision Date: 12 June 1899
• Citation: 63 N.J.L. 365,43 A. 693
• Parties: SUN INS. OFFICE OF LONDON v. MERZ.
• Court: New Jersey Supreme Court

43 A. 693

63 N.J.L. 365

SUN INS. OFFICE OF LONDON

v. MERZ.

Supreme Court of New Jersey.

June 12, 1899.

(Syllabus by the Court.)

Action by the Sun Insurance Office of London against Henry Merz. Demurrer to declaration sustained.

Argued February term, 1899, before MAGIE, C. J., and GARRISON, LIPPINCOTT, and COLLINS, JJ.

Edward A. Day, for plaintiff.

Edward M. Colie, for defendant.

MAGIE, C. J. The questions argued in this case arise on a demurrer to the first and second counts of the plaintiff's declaration Each of these counts is founded upon a contract, which is referred to therein, and annexed to the declaration. It will be convenient to consider the contract, which, being so referred to and annexed, cures any defects by reason of not setting forth, or insufficiently setting forth, the same in the body of the declaration. The contract purports to be executed on October 13, 1897, by the defendant and 24 other persons and firms. Its pertinent provisions are the following: "We, the undersigned, firms and individuals, as separate underwriters, each represented by and acting through Thomas & Bellows, of the city of Jersey City, hereinafter called the 'attorneys,' and each firm or individual acting separately, and not one for the other or for any of the others, do hereby agree to insure the separate amounts placed after our names, respectively, in consideration of stipulations herein named, and of the payment to and receipt by us of our respective proportions of the sum of three thousand dollars as premium of such insurance, and do hereby separately in the said amounts reinsure the Sun Insurance Office of London for the term of time from the 30th day of September, 1897, at midnight, to the 31st day of December, 1897, at midnight, against all direct loss or damage by fire to the property herein mentioned, except as hereinafter provided, to an amount not exceeding in the aggregate the sum of $25,000, nor exceeding the interest of the assured in said property, to the following described property, while located and contained as described herein and not elsewhere, to wit, reinsurance of the Sun Insurance Office of London. Being a reinsurance of the liability of the Sun Insurance Office for claims for loss and damage by fire or lightning occurring in the months of October, November, and December, 1897, destroying and damaging property located anywhere in the United States and territories. First: The property must be damaged or destroyed by fire between midnight of September 30th, 1897, and midnight of December 31st, 1897. Property damaged prior to midnight of September 30th, 1897, or after midnight of December 31st, 1897, is not reinsured or covered by this policy. Second. No claim for loss can be made upon the New Jersey State Fire Association until the Sun Insurance Office of London presents a statement, under oath, that they have suffered and paid losses by and in consequence of fires occurring during the time between midnight of September 30th, 1897, and midnight of December 31st, 1897, equal to the sum of $172,500, net,—after salvages and all reinsurance applicable thereto have been allowed." The present action against the defendant is supported by virtue of the following provision of the contract: "In the event of litigation herein, to avoid a multiplicity of suits, no suit or other proceeding at law or in equity shall, in any event, be begun or maintained for the recovery of any claim upon, under, or by virtue of this policy against more than one of the underwriters hereon at any time, nor in any court other than the highest court of original jurisdiction; and a final decision in such suit or other proceeding shall be taken to be decisive of the similar claim, so far as the same may subsist, against each of the other underwriters hereon, absolutely fixing his liability in the premises. Each of the underwriters hereon, in consideration of their entire stipulation, so far as he individually is or may be concerned, expressly agrees to accept and abide by the result of such final decision, in the manner and to the same effect as if he had been sole defendant in a similar suit or proceeding as to the similar claim against him, so far as the same may subsist, save and except, however, as to the matter of costs and disbursements. And the attorneys are hereby authorized, as to each underwriter hereon, to...