Davis v. Davis , 49 Me. 282 ( 1862 )

The opinion of the Court was drawn up by

Appleton, J.

The trustees in their policy of insurance promised and agreed "to make good unto the insured” all. such loss or damage, not exceeding the sum insured, as shall happen by fire, &c., "the said loss or damage to be paid within sixty days after due notice and proof thereof, made by the insured in conformity to the conditions annexed to this policy. At the time of the service of the plaintiff’s writ on the trustees, neither notice nor proof of the loss, in conformity with the conditions of the policy, had been given.

The preliminary proof required by the policy was a condition precedent to the right of the insured to recover. "It was,” remarks Weston, C. J., in Leadbetter v. Etna Ins. Co., 13 Maine, 265, "a condition rightfully imposed, fully accepted, and made a part of' the policy.” Without it the insured could not recover. When service was made, it was uncertain whether due notice would be given. It was the same uncertainty which exists before the maturity of a note, whether or not, in case of non-payment, the indorser will receive due notice. The liability of the insurer does not become absolute, unless the preliminary proof, as required in the conditions of the policy, is obtained. If no proof is furnished, the liability does not attach. The magistrate most contiguous- to the place of the fire may not be able conscientiously to give the certificate required by the ninth condition of the policy.' Or he may unreasonably refuse. But "if unreasonably refused,” remarks Weston, C. J., in the case before cited, "it was their misfortune, and without it they cannot recover.” In Worsley v. Wood, 6 D. & E., 711, Grose, J., uses the following language: — "It does, not seem to me that a fire without fraud will give the assured a right of action; it must be a fire, accompanied with the notice, affidavit and certificate, specified in the proposals.”

It was doubtful, then, if ever a liability would attach. The contingency is not of proving a case, but of ever having one to. prove, — of there ever being a time when the insured would have a right of action.

■ By R. S., 1857, c. 86, § 55, "no person shall be adjudged trustee by reason of, any money or other thing due from bim to the principal defendant, unless, at the time of the service of the writ upon him, it is due absolutely, and not upon any contingency/” The contingency under this section, as settled in Stone v. Dwinel, 30 Maine, 384, "is not a mere uncertainty as to how the balance may stand between the principal and the supposed trustee; but it is such a contingency as may preclude the principal from any right to call the supposed trustee to settle or account.”

Exceptions overruled. — Trustees discharged.

Tennev, C. J., Rice, Goodenow, Davis and Walton, JJ., concurred.