Thompson v. Phoenix Ins. Co.
| Decision Date | 08 November 1885 |
| Citation | 25 F. 296 |
| Parties | THOMPSON, Receiver, v. PHOENIX INS. CO. |
| Court | U.S. District Court — District of Oregon |
Henry Ach, for plaintiff.
P. L Willis and Milton Smith, for defendant.
On April 21, 1884, the defendant, in consideration of the sum of $300 paid to it by E. S. Kearney, insured him as 'receiver for Holladay v. Holladay,' in the sum of $5,000 against loss or damage by fire on a half interest in the Clarendon hotel and furniture for the term of one year from April 27th; and on the night of May 19, 1884, the property was destroyed by fire. This suit was brought on July 10, 1885, to reform the policy by the plaintiff, as the successor of Kearney in said receivership. The bill alleges that by mistake the policy was made payable to said Kearney 'instead of the receiver in said suit of Holladay v Holladay and his successors, and for the benefit of whom it might concern;' and prays that it may be reformed by adding therein, after the words 'E. S. Kearney,' the words 'as receiver in the suit of Benjamin Holladay against Joseph Holladay, for and on account of his successors as such receiver, and for the benefit of whom it might concern;' 'and that the sum so insured by said defendant on said building and furniture be paid to your orator accordingly. ' The defendant demurs to the bill and for cause of demurrer assigns, among others, the following: 'The plaintiff's right is barred because he did not commence this suit within twelve months next after the date of the fire from which the loss occurred. ' The policy contains a stipulation to the effect that a loss arising thereunder is not payable until the proof thereof is furnished, and, in case of arbitration, the award fixing the amount thereof is had; and also this:
'It is furthermore hereby expressly provided and mutually agreed that no suit or action against this company for the recovery of any claim by virtue of this policy shall be maintainable in any court of law or chancery until after an award shall be obtained fixing the amount of such claim in the manner above provided, nor unless such suit or action shall be commenced within twelve months next after the date of the fire from which such loss shall occur; and should any suit or action be commenced against this company after the expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.'
There is no claim that the right to bring this suit has been delayed over a year from the date of the fire from which the loss occurred by any dispute concerning the value of the property destroyed. On the contrary, it appears from the bill that the proof of the loss was duly made, and that the amount is not contested, but that the payment thereof is refused to the plaintiff solely on the ground that by the terms of the policy it is payable to Kearney only. Therefore the question does not arise in this case whether an action could be maintained on this policy by the assured, after the expiration of a year...
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