Temple v. Niagara Fire Ins. Co.
| Decision Date | 26 February 1901 |
| Citation | 85 N.W. 361,109 Wis. 372 |
| Parties | TEMPLE v. NIAGARA FIRE INS. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Dunn county; E. W. Helms, Judge.
Action by William H. Temple against the Niagara Fire Insurance Company, impleaded with others. Judgment for plaintiff, and defendant appeals. Reversed.C. E. Freeman (F. V. Brown and W. D. Van Dyke, of counsel), for appellant.
E. B. & R. E. Bundy, for respondent.
It appears from the record, and is undisputed, that prior to January 15, 1900, the plaintiff was the owner of a two-story frame hotel building situated in the village of Knapp, and had procured thereon, and then held, seven policies of insurance, each insuring him against all direct loss or damage by fire to said building, to the amount stated in such policies, respectively, issued by the several defendants herein, together aggregating the sum of $6,000, which policies were each and all in the form of the Wisconsin standard fire insurance policy, as established by sections 1941-43 to 1941-62, Rev. St. 1898; that January 15, 1900, the hotel building described, of the plaintiff, was wholly destroyed by fire; that on or about February 14, 1900, the plaintiff served due proofs of such loss upon each of such insurance companies; that on or about March 9, 1900, notice in writing was served on the plaintiff for and in behalf of each and all of such insurance companies, wherein and whereby they each and all elected, in effect, to rebuild said hotel pursuant to the terms of their respective policies without any unreasonable delay, and thereby notified and required the plaintiff to furnish the companies or their adjuster with verified plans and specifications for such rebuilding, as requested in a former letter, and that any delay in furnishing the same would necessarily result in delaying such rebuilding; that on or about March 27, 1900, the plaintiff replied in writing to such notice, to the effect that he did not wish the companies to rebuild the building, and that he would not accept any building which might be built by such companies in satisfaction of such loss; that such building was wholly destroyed, and that he was entitled to the amount of his written insurance, and would insist on the payment of the same; that on or about April 11, 1900, the adjuster in behalf of each and all of such insurance companies again notified the plaintiff that the plans called for by such companies February 26, 1900, and again March 9, 1900, had not been received; that such companies were waiting for the plaintiff to furnish such plans and specifications in order that the hotel might be rebuilt and completed in the same manner as it was at the time of the fire, January 15, 1900; that, if he failed to furnish such plans and specifications within a reasonable time from that date, the insurance companies would proceed to rebuild his hotel from the best information obtainable with reference to the plans of the same, and the quality and variety of the various kinds of material contained in the building at the time of the fire; that on or about April 16, 1900, the plaintiff replied to the effect that, in order to avoid any technical want of performance of the contract on his part, he had determined to furnish the plans and specifications thereunto attached, but did not furnish them for the purpose of having the companies rebuild his hotel; that he thereby notified the companies that he did not consent to their rebuilding the same on his premises; that he would not accept any building placed thereon in satisfaction of the loss in whole or in part; that the building was totally destroyed, and that he claimed the full amount of the insurance, $6,000, in cash, and would insist upon its payment; that on or about April 24, 1900, the plaintiff, in pursuance of section 2609a, Rev. St. 1898, commenced this action against each and all of such companies and upon each and all of such policies, and demanded judgment against each company for the amount of the policy issued by it, and interest thereon; that each of said seven defendants answered, setting up such standard policy, and the election of all the defendants to rebuild, as stated, and the fact that they had within a reasonable time entered upon the rebuilding of such hotel, and were then engaged in such rebuilding under the clause of the policy, authorizing them to so rebuild, and that the same was being done according to the plans and specifications so furnished by the plaintiff. The cause so at issue having been tried, and at the close of the testimony, the jury, by direction of the court, returned a verdict to the effect that they...
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