Caston v. Monmouth M. F. Ins. , 54 Me. 170 ( 1866 )

DickeRSON, J.

This is an action upon a policy of insurance against fire. After introducing evidence of his title, the policy of insurance, application, proof of the loss by fire, the amount of the loss, and notice, the plaintiff rested his case. Thereupon, on motion of the defendants, the Court Ordered a nonsuit, and the plaintiff excepted.

It is argued in support of the nonsuit,—

1. That the representation in the application in regard to the occupancy of the house insured, was material and untrue.

The case finds that the application for insurance, including the valuation and description of the property, was drawn up by the agent of the company, who " knew all the facts about the ownership and occupancy.” The statute of 1861, c. 84, § 2, makes an application thus drawn up conclusive upon the company.

2. It is further argued in support of the nonsuit, that the plaintiff did not comply with the terms of the policy, and the requirement of the statute of 1861, c. 34, § 5, in regard to notice.

The plaintiff notified the company of the fire the next day after it occurred by letter, through the agent who effected the insurance. This was a compliance with the stipulation in the policy. No other notice was given ; and the defendants insist that the plaintiff should also have delivered to the defendants or their agent " a particular account of the loss and damage,” as required by § 5, c. 34, of the statute of 1861. The plaintiff replies that this objection is not open to the defendants under their specifications of defence. If the defendants can avail themselves of this ground of defence, they concede that it must be under the sixth specification, which declares that, "if the house and L were destroyed, as is alleged, plaintiff never gave any legal notice thereof to the defendants.” The notice required by the statute does not differ materially from that specified in the policy, and given by the plaintiff. Statute of 1861, c. 34, § 5. There was no occasion for two notices of the same fact; the notice given by the plaintiff was a compliance with the statute in respect to notice as well as the policy.

The objection arising from the alleged non-delivery by the plaintiff to the defendants of "a particular account of the loss and damage,” mentioned in the statute, is not open to the defendants, as they have not set forth this ground of defence in their specifications. Whether, if open to the defendants, it would avail them to defeat the action, has been seriously questioned, the plaintiff having given the notice required in the policy. Fox v. Conway Fire Ins. Co., 53 Maine, 109.

This view of the case renders it unnecessary to consider the question of waiver, and the other points raised by the plaintiff’s counsel at the trial.

Exceptions sustained, Nonsuit stricken off, Oase to stand for trial.

Appletox, C. J., Next, Walton, Barrows and Dan-eorth, JJ., concurred.