Case v. Sun Insurance

Sharpstein, J. — The policy upon which this action is based contains, among others, the following clause: —

“It is mutually agreed that no suit or action for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or chancery, until appraisement shall be had, if demanded by this company, and in accordance with the printed conditions of this policy, nor unless such suit or action shall be commenced within twelve months next after the fire shall occur.”

The fire is alleged to have occurred on the twelfth day of September, 1884, and this action was commenced on the twenty-second day of November, 1885, more than twelve months next after the fire occurred.

The contention of appellant is, that at the time of the commencement of the action it was barred by the terms of said stipulation. That contention must prevail, unless the clause upon which it is based is modified by some other clause or clauses of the policy.

One clause reads as follows: “ The amount of loss or damage to be estimated according to the actual cash marketable value of the property at the time of the loss, which in no case shall exceed what it would then cost to replace the same, deducting therefrom a suitable amount for any depreciation of such property by reason of age, wear and tear, location, change of style, lack of adaptation to profitable use, or other causes. The adjusted claim under this policy shall be due and payable at the company’s office in San Francisco, California, sixty days after the full completion by the assured of all the requirements herein contained.”

Among the requirements therein contained were the following: “ The assured, his, her, and their agents and [475]servants, shall, whenever required, submit to an examination or examinations, under oath, by any person appointed by this company, and subscribe to such examinations when reduced to writing, and shall also produce their books of account and other vouchers, and exhibit the same for examination at the office of this company in San Francisco, as often as required, and permit extracts and copies thereof to be made. The assured also shall produce certified copies of all bills and invoices, the originals of which have been lost, and shall exhibit all that remains of the said property, damaged or not damaged, for examination to any person or persons named by this company, and shall also furnish such further particulars and such certificates of a magistrate or officer charged with the duty of investigating fires as may be required. The proofs of loss shall be made by the party insured in regular form.”