Caledonian Insurance v. Julius Traub & Brother

Citations

• 83 Md. 524
• 35 A. 13
• 1896 Md. LEXIS 70

Syllabus

<p>Fire Insurance—Stipulation for Estimate of Loss by Appraisers— Withdrawal of Arbitrator Pending Appraisal—Invalid Award— Failure of Arbitration Caused by Assured—Evidence.</p> <p>A policy of fire insurance provided that in the event of a disagreement as to the amount of a loss the same should be ascertained by two appraisers, the company and the assured each selecting one who shall first choose an umpire, and upon the failure of the appraisers to agree . the difference shall be submitted to the umpire, the award of any two to determine the amount. One of the appraisers appointed under this provision withdrew before the work was completed, and the award was then made by the other appraiser and the umpire. Held, .that such award was invalid because not in accordance with the stipulation of the policy, which required combined action by the appraisers selected by the parties, and the umpire had no authority to act except when they differed in their estimates.</p> <p>Under a policy containing the above mentioned stipulation for an appraisement of a loss, the appointment of an appraiser by the assured is a condition upon which the liability of the insurer depends, and if after such appointment the appraiser withdraws at the instigation of the assured there can be no recovery on the policy; but it should be left to the jury to determine the fact whether the failure of the appraisement was caused by the assured or not. The failure of the arbitration without his fault would not bar an action on the policy.</p> <p>Although the policy provides that the appraisers appointed by the parties shall, before proceeding to act, first select an umpire, the fact that the umpire was not chosen until after the appraisement had been begun would not invalidate an award, since the substantial requirement was that he should decide differences of judgment between the appraisers.</p> <p>An appraisement of the loss required by the policy to be in writing cannot be proved by oral testimony, bu