Stockton Combine Harvester & Agricultural Works v. Glen's Falls Co.

Citations

• 98 Cal. 557
• 33 P. 633
• 1893 Cal. LEXIS 958

Syllabus

<p>Fibe Insúbanoe—Action upon Pbomise to Pat Shabe of Abpbaised Loss— Finding against Pbomise.—A ¿ause of action upon an agreement alleged to have been made by an insurance company with the plaintiff, after the amount of plaintiff’s entire loss by fire bad been appraised by arbitrators, to pay to plaintiff a certain proportionate share of such appraised loss, is distinct from a cause of action upon the policy of insurance; and where the complaint does not state a cause of action upon the policy, but upon the promise of the defendant to pay a share of such appraised loss, a finding that the defendant made no such promise is fatal to a judgment in favor of the plaintiff.</p> <p>Id.—Defenses to Policy not Allowable—Waiver by Agreement to Pay.— In an action upon an agreement to pay a share of the appraised loss, the insurance company is not allowed to set up defenses which might be interposed in an action on the policy, the agreement being a waiver of a breach of all covenants or conditions of the policy, and of all defenses which might have been made except for such waiver.</p> <p>Id.—Implied Promise—Award of Appraisers—Condition against Waiver. — The rule that the law implies a promise to perform an award under a general submission of a controversy, without an express promise to perform it, has no application when the award is merely qf appraisers upon the question of the amount of loss by fire, under insurance policies expressly providing that such appraisement or award should not operate or be taken as a waiver of any provision or condition of the policies.</p> <p>Id.—Actions—Award of Appraisers—Express Promise—Election of Remedy —Pleading—Material Averment of Agreement.—No action can be maintained upon an award of appraisers under such limited submission standing alone; but if the insurer has expressly promised to pay it, the insurer may maintain an action either upon the policy, alleging the fact of the award to fig the amount of recovery, or he may sue upon the n