Tasker v. Insurance Co. , 58 N.H. 469 ( 1878 )

The clause in the policy, stipulating that no action shall be sustainable thereon unless commenced within twelve months next after the loss occurs, is in form and effect a condition precedent, and unless it is complied with, there can be no recovery at common law. Patrick v. Ins. Co.,43 N.H. 621, 624; Gooden v. Ins. Co., 20 N.H. 73, 76; Judkins v. Ins. Co., 39 N.H. 172; Fullam v. Ins. Co., Gray 61; Roach v. Ins. Co.,30 N. Y. 546; Williams v. Ins. Co., 20 Vt. 222; Wilson v. Ins. Co., 27 Vt. 99; May on Ins., s. 478.

It is said that the action may be maintained under the provisions of Gen. St., c. 157, ss. 6, 7. This statute was in force at the time the policy was issued, and it ordinarily should be construed by the statute, at least so far as the parties intended that it should govern the contract. Chamberlain v. Ins Co., 55 N.H. 249, 265. But the parties to the policy did not intend that the statute should govern or control it, as they have expressly agreed that the clause in the policy shall be operative, any statute of limitation to the contrary notwithstanding. Statutes that are made for the benefit of particular persons may be waived by them. Hanover v. Weare, 2 N.H. 131; Page v. Pendergast, id. 233, 235; Lyman v. Littleton, 50 N.H. 42. Sections six and seven were evidently enacted for the benefit of those insured, but the plaintiff has waived their benefits in terms as absolute as language can express.

New trial granted.

CLARK, J., did not sit.