In McGarry v. Loomis (63 N.Y. 108; 20 Am. Rep. 510), we stated it as a proposition too plain for comment that "it is not unlawful, wrong or negligent for children on the sidewalk to play."Summary of this case from McGuire v. Spence
Argued October 4, 1875
Decided November 9, 1875
William Allen Butler for the appellant.
Amasa J. Parker for the respondent.
In addition to the more usual and ordinary preliminary proofs required to be furnished as a condition precedent to the right of the insured to indemnity against loss, the policy upon which this action is brought provides that "the assured shall, if required, produce copies of all bills and invoices, the originals of which have been lost." The defendant's undertaking is to pay the loss or damage occasioned by the perils insured against, within sixty days after due proof thereof, in conformity to the conditions annexed to the policy. A full compliance with this condition was indispensable to a right of action upon the policy, unless a compliance was impossible or was waived by the insurers. ( Worsley v. Wood, 6 T.R., 710; Columbian Ins. Co. v. Lawrence, 2 Pet., 52, 53; Jube v. Bklyn. Fire Ins. Co., 28 Barb., 412; Jennings v. Chen. Co. Mut. Ins. Co., 2 Den., 75; Savage v. Howard Ins. Co., 52 N.Y., 502.)
The books and papers of the insured, including the original invoices and bills of purchase, were destroyed by fire, and this gave to the insurers the right to certified copies. They were distinctly and specifically called for by the letter of the agent of the defendant and the other insurers of December 31, 1868, the insured having, on the ninth of the same month, been formally advised that "complete proofs of loss, as required by said policies," must be made. They were not furnished, and on the twelfth of January, in reply to an evasive letter from the insured, he was referred to the requirements of the letter of the thirty-first December and told that the whole would be required, under oath; and on the fifth of February he was again called upon by letter for duplicate copies of all invoices of goods purchased in 1867 and 1868. The request was not complied with, nor was compliance shown to be impossible. No attempt to supply these proofs was shown. It will not be assumed that the merchants, of whom goods had been bought for the twenty months preceding the fire, were not known, could not be found, or would be unable to furnish duplicates of the bills of goods sold the insured during those months. There was no claim upon the trial that this condition had been complied with; that compliance was impossible, or that the defendant had waived it. The counsel for the respondent contended on the argument in this court that this part of the condition had been waived; but had that been the contention at the trial it would have been a question of fact for the jury. The cause was not tried upon that theory. The judge at Circuit instructed the jury that the insured was not bound, as a condition precedent to a right of action upon the policy, and as a part of the preliminary proofs, to furnish certified or duplicate copies of the bills of purchase, but was only bound to furnish such as he had in his possession, and left it to the jury to say whether he had given the insurers all the information he had, and the jury were told that if he had done so he had complied with the condition and was entitled to recover, so far as that objection was concerned. It is not a question whether the condition is reasonable or unreasonable. It is lawful, the assured has assented to it, and we cannot dispense with it and make a new contract for the parties. Had the insured been unable from any cause fully to comply with the condition and the inability had been shown to exist, and without his fault probably, a failure literally to comply with it might not have been fatal to the action. ( Bumstead v. Div. Mut. Ins. Co., 2 Ker., 81.) The difficulty is, that the condition was ignored and set aside by the judge in his instructions to the jury and the defendant deprived of the benefit of a material clause and condition of the contract. The intent and meaning of the clause is neither ambiguous nor obscure and, upon the most favorable interpretation for the insured, exacts from him, upon the requisition of the insurers, duplicates of his invoices of purchase certified by the merchants from whom the purchases were made. The condition is reasonable and not difficult of performance, and the defendant has a right to insist upon a compliance.
The court below seems to have regarded the certified copies called for by the condition as copies of originals in the actual possession of the insured, and the originals which had been in his possession having been destroyed, that the condition had become impossible of performance. They overlooked the fact that it was only in case of loss of the originals that certified copies could be required, necessarily imposing the duty upon the insured to supplement his proofs by copies to be obtained from other sources, the sellers of the goods.
For the error suggested, and without considering the other questions made, the judgment must be reversed and new trial granted.