Smith v. Haverhill Mutual Fire Insurance , 83 Mass. 297 ( 1861 )

Bigelow, C. J.

This is a very plain case. The plaintiffs claim in the right of the original assured, and are bound by all the stipulations contained in the contract of insurance. By the tenth article of the by-laws it is provided, that the assured shall within thirty days after a loss by fire file with the secretary of the company a particular account of the amount of his loss, the value of the property insured at the time of the fire, and his interest and title therein. It is also further provided by the same by-law that, unless such proofs and declarations are filed within thirty days, losses shall not be payable. The policy was clearly made subject to this by-law. Not only did the assured in the application which is referred to in the policy agree to be bound by the by-laws, but the promise of the defendants was to indemnify the assured “ according to the true intent and meaning of, the act of incorporation and by-laws.”

It is not pretended that the provisions of the by-laws were complied with by the assured. No notice of the loss was given to the company until nearly a year and a half after the fire. By the terms of the contract, therefore, the loss was not payable.

There was no sufficient evidence of a waiver of this provision in the by-laws by the directors of the company, nor of any consent to the payment of the loss by two thirds of the directors, according to the stipulations in the same article of the by-laws. All the facts show that the defendants stood on their rights, and never intended to yield anything in the negotiations which they had with the plaintiffs. After so long a lapse of time between the occurrence of the fire and the notice of the loss, very strong evidence of waiver would be necessary. During this interval of time many old members of the company must have ceased to be associates, by the expiration of their policies, and many new ones had doubtless come in. Under such circumstances, therefore, it is difficult to believe that the directors would consent to admit their liability for a loss from which they had been discharged by the loches of the assured, and which, if allowed, would essentially affect the interests of their policy holders. This view of the case renders it unnecessary to decide whether the directors had power to waive the provisions of the by-laws relating to the notice of loss. See Hale v. Mechanics’ Ins. Co. 6 Gray, 173. Baxter v. Chelsea Ins. Co. ante, 294.

Judgment on the verdict.