Trask v. State Fire & Marine Insurance , 29 Pa. 198 ( 1857 )

The opinion of the court was delivered,

by Lowrie, J.

We must decide this case according to the contract law, established by the parties for the definition of the relation between them. We may modify that contract law so as to give it an equitable adaptation to unanticipated events, but we cannot establish or introduce another in its stead. Certainly it is a contract condition of the defendants’ liability that they shall be immediately notified of any loss insured against, and we cannot dispense with a compliance with this law unless the plaintiff shows some proper excuse for his non-compliance. We think a delay of eleven days in giving the notice is not a compliance with the contract, and that the plaintiff has presented no reasonable excuse for this.

Then, by the terms of the contract, the defendants are discharged from liability. But it is supposed that the liability may re-attach, because there was a waiver of the defect in the notice by the secretary of defendants having received it without objection, and giving to plaintiff some directions about making out the statement of his loss, and in the fact that one of the defendants’ agents made some examinations respecting the nature of the loss. Yet when these acts were done the defendants were free from their contract; and we do not see how such acts could re-establish it, for we do not discover that the agents had authority for that, or intended to exercise it, or that there was any consideration to sustain it: 19 State Rep. 401. And these acts may be accounted for, because the plaintiff had, in his notice, set up an excuse for his delay, which the agents might have supposed would be proved; but it has not been. And besides all this, the court left it as a question of fact to the jury to decide whether or not there had been any waiver, and were not asked to give any more particular instructions in relation to the subject.

Judgment afiirmed.