Zalesky v. Iowa State Ins. Co.

• Decision Date: 09 February 1897
• Citation: 70 N.W. 187,102 Iowa 512
• Parties: ZALESKY v. IOWA STATE INS. CO.
• Court: Iowa Supreme Court

102 Iowa 512

70 N.W. 187

ZALESKY

v.IOWA STATE INS. CO.

Supreme Court of Iowa.

Feb. 9, 1897.

Appeal from district court, Benton county; G. W. Burnham, Judge.

Action at law upon a policy of fire insurance. Trial to a jury. The court below directed a verdict for plaintiff, and defendant appeals. Reversed.McVey & Cheshire, for appellant.

J. J. Mosnat and W. C. Scrimgeour, for appellee.

DEEMER, J.

The issuance of the policy in suit, which covered a two-story brick building in the city of Belle Plaine and a meat cutter and an engine and boiler, the destruction of the building by fire, and the giving of proper proofs of loss, are all admitted. The defendant, in defense, pleaded a former suit pending in Lee county, which went to judgment before the commencement of this action. It also pleaded concurrent insurance upon the property, and set out this provision of plaintiff's policy: “The directors shall have the right to rebuild the building or repair the same, and the assured shall furnish to the directors proper specifications of the building destroyed or damaged; and the claim of the assured shall be limited to the actual cost of the building to the assured, or of replacing the same, less a reasonable depreciation for wear and tear and age of the building. If the directors rebuild or repair a building, the assured shall pay to the company the difference in value between the new and old building, and, in case of disagreement, the amount thereof shall, upon demand of either party, be determined as provided by section 14 of the charter. And if there shall be any policies of other companies thereon not contributing to said rebuilding, the assured shall pay to this company the amount thereof, which shall be expended in repairing or restoring the buildings, subject to the foregoing conditions,”--and charged the fact to be that within 30 days after the alleged proofs of loss this defendant demanded the right to rebuild said building under the terms and conditions of the policy, and demanded of the plaintiff that the assured should pay to this company the amount of the other insurance not contributing to such rebuilding, to enable the defendant to spend the same to restore and rebuild the building thereof, or as much as was necessary to rebuild the same, according to the terms of the policy. It also pleaded that by the terms of its policy its board of directors had three months in which to determine whether to rebuild or not, and that its said board did within three months determine to rebuild, and so notified the plaintiff, but that plaintiff refused to comply with the terms of the policy, and refused and neglected to permit defendant to restore the building; and in defiance of his policy, and of defendant's rights thereunder, proceeded to rebuild the said building himself. The plaintiff's reply was a plea of estoppel, and practically a general denial of the affirmative matters of the answer.

1. The appellant offered to prove by George Rand, a director of the company, and by one Overton, adjuster, that at a regular meeting of the directors held on September 21, 1894,--within 10 days after proofs of loss were furnished,--they decided to rebuild, and ordered the adjuster to give appellee notice of their decision, and request him to furnish plans and specifications of the building destroyed; that in conformity to the usual and ordinary custom of the directors no record was made of their action in the matter, and that it was usual for the secretary to make up the record of the action of the board only when a loss was fully and finally disposed of. Appellee objected to this evidence on the ground that it was incompetent and irrelevant, and not the best evidence. The court sustained the objection, and of this complaint is made. It will be observed that no record was made of the action of the board, and there was no written evidence of the conclusion arrived at. It rested in the memory of the individuals who were present, and their recollection and statements as to what was done was the best and only evidence attainable. There is no statutory requirement that such matters should be in writing, and we know of no reason for holding that parol evidence is not admissible in such cases. Indeed, it has been so often held that, where no records are kept, or the proceedings are not recorded, parol evidence is admissible to show what was resolved upon, and by what vote it was carried, that it may be said to be the unanimous voice of authority that such proof may be given. Ten Eyck v. Railroad Co. (Mich.) 41 N. W. 905; Cram v. Proprietary Co., 12 Me. 354; Bank v. Dandridge, 12 Wheat. 69; Dill. Mun. Corp. (4th Ed.) §§ 300, 301; Poweshiek Co. v. Ross, 9 Iowa, 511;Athearn v. Independent Dist., 33 Iowa, 105. See, also, Lawson's note to Wertheim v. Trust Co., 15 Fed. 727;Higgins v. Reed, 74 Am. Dec. 309-312; Beach, Priv. Corp. § 295. The evidence offered was not only the best of which the case was susceptible, but it was also competent to establish the facts sought to be proved.

The only other question which remains is, was it relevant? It certainly was, for it went to support one of the defenses pleaded by appellant. It is contended in argument by appellee, however, that the evidence was immaterial, and that no prejudice resulted to appellant from the ruling. This brings us to a consideration of the contract entered into between the parties. The policy sued upon contained these provisions: “And we do therefore promise according to the provisions of said charter to pay the said sum insured within the three months next after the said loss shall have been proved by the assured and adjusted by the board of directors as required by the charter aforesaid during the time this policy shall remain in...