On appeal from the Supreme Court.
For the appellant, James Mercer Davis.
For the respondent, Robert J. Tait Paul.
The opinion of the court was delivered by
TRENCHARD, J. This is a suit upon two fire insurance policies issued by the defendant company to the plaintiff and covering personal property destroyed by fire. The trial judge, at the Camden Circuit, directed a verdict for the plaintiff, and the defendant appeals from the consequent judgment.
The defendant-appellant contends that the trial judge erred in directing a verdict for the plaintiff because, as it argues, "the plaintiff's right of action had not matured" in that he did not fulfill the conditions precedent to bringing his action.
The conditions of each policy said not to have been fulfilled were, briefly: (1) notice of loss by fire; (2) proof of loss, and (3) arbitration in the event of disagreement as to the amount of loss.
In view of the evidence, and for reasons now to be stated, we think that those conditions of the policies did not prevent the direction of a verdict for the plaintiff.
As to the notice of loss by fire: The fire occurred on August 24th, 1929. The adjusters of the defendant company were at the scene of the fire on August 25th, 1929; the assistant secretary of the defendant and another adjuster for the defendant were there on September 20th, 1929, and at that time went
over the fire loss and cause a paper to be signed by the plaintiff which recites the particular fire and the date thereof.
As to proof of loss: When the adjusters were at the scene of the fire on September 20th, 1929 (according to the testimony of the assistant secretary of the defendant), they and the plaintiff "went over the items that were lost and I took his estimate of what he thought they were worth."
As to arbitration: The policies called for arbitration only if there was "disagreement as to the amount of loss." There was no dispute as to the amount of loss, and in fact the amount of loss was stipulated; ...