Jube v. Brooklyn Fire Insurance

By the Court, Davies, P. J. The only question which I propose to consider, is, whether the assignor of the plaintiff complied with the conditions of his policy, so as to entitle the plaintiff to recover. The conditions annexed to the policy are parcel of the contract, and have the- same effect as though written in the body of it; and where a condition, thus forming part of a policy, is not complied with, the plaintiff cannot recover. (Jennings v. The Chenango County Mutual Ins. Co., 2 Denio, 75.) In the case of Smith v. The Saratoga County Mutual Fire Ins. Co., (1 Bill, 497,) the parties by the policy had agreed that the policy should not be assigned without the consent of the company, and the insured did assign it without such consent, and the court held there could be no recovery on the policy. BaoNSOH J., in giving the opinion of the court said: “However strongly we may desire to get rid of this conclusion, (viz, that the assignment without the consent rendered the policy void and of no effect,) I do not see how it [414] can be done. The parties must abide by the contract they have made.” The court of exchequer, in England, in Mason v. Harvey, (8 Exch. Rep. 819,) held that these conditions are reasonable and for the benefit of the insurers, to enable them to decide upon their rights and the extent of their liability before they are called upon to pay, and no liability attaches until they have been complied with by the insured. In Haff v. Marine Ins. Co., (4 John. 132,) Thompson, J., in delivering the opinion of the court, says, “ good faith and the true spirit and intention of the clause requiring preliminary proof of loss, required the plaintiff to disclose at least all the documentary evidence in his possession touching the nature and extent of the loss. * * * The very fact of not producing it was calculated to awaken suspicion.” And in that case the court held that the omission to produce was fatal to the plaintiff, and he should have been nonsuited. The assignor of the plaintiff in this case had agreed, and it was part of the policy, that he should produce, if required by the assurers, his books of account and other vouchers in support of his claim, and permit extracts and copies to be made. He was required by the defendants, as he testifies, to produce his bills of purchases; he says he told them it was impossible to do so; that he had only found a few bills; that he had since found others, but only a part, but did not produce any to the defendants; that they asked him to furnish further statements, and the bills of purchases, or duplicates of them, but under the advice of counsel he declined. It is apparent from this testimony, that Carpenter had some of these vouchers or bills at the time of the demand for them, and could have complied with it, to that extent. But he did not, and it would seem he did refuse under the advice of counsel. We think he was not to judge of the materiality or importance of the papers required. He had agreed to produce them; that is, all such as he had in his possession or with reasonable in [415] quiry could be found, and not .having complied with such agreement, we are unable to see how he can recover. [New York General Term, September 20, 1858. Davies, Sutherland uml Eogéboom, Justices.) The case of Bumstead v. The Dividend, Mutual Ins. Co. (2 Kern. 81,) cited and relied on by the plaintiff’s counsel, does not conflict with these views, but we think is in harmony with them. The court excused the insured from the non-production of the papers and vouchers, upon two grounds; First, that they had all been consumed in the fire, and secondly, that the assurers had waived the non-production. hTeither of these grounds are applicable to the present case. The court, we think,' correctly held that these conditions are to receive a reasonable construction, and are to be construed as requiring only as full and accurate an inventory, statement and production as the party, without fraud or fault on his part, is able to furnish. All that the party was required to produce was such papers as he had in his possession or under his control. We do not see that he had agreed to procúre and produce duplicates of his bills of purchases; or that he was under any obligation to procure them and deliver them to the assurers. But we think he did not produce those which he had in his possession or under his control, and which the assurers had a right to require; and that the justice at the circuit erred in refusing to nonsuit the plaintiff and dismiss the complaint. The judgment must be reversed, and a new trial ordered, costs to abide the event.