Waynesboro Mutual Fire Insurance v. Conover , 1881 Pa. LEXIS 165 ( 1881 )

Mr. Justice Green

delivered the opinion of the Court

This was an action on a policy of insurance against loss by fire. The building insured was destroyed by fire on April 26th 1876. The summons was issued on June 20th 1878, more than two years after the loss occurred. The 16th condition of the policy is in the following words viz.: “ It is furthermore hereby expressly provided, that no suit or action of any kind against the company, for the recovery of any claim upon, under, or by virtue of this policy, shall be sustainable in any court of law or equity unless such suit or action shall be commenced within the term of six months next after the fire, and in case any such suit or action shall be commenced against said company after the expiration of said six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced.”

Amongst the defenses set up against the plaintiffs’ right of action, was the limitation contained in the foregoing condition. The validity of such a defense is established by the decision of this court in the case of Warner v. Insurance Oo. of North America, 37 Legal Intelligencer 475, and is a necessary consequence of the express provisions of the contract. All this is conceded by the learned' counsel for the plaintiffs. But they contend that the defendant is estopped from availing itself of this defense because one who, as they allege, was the general agent of the company said to them before the six months had expired, and upon being informed of their intention to bring suit, that it was not necessary to sue, that the company was somewhat embarrassed' but had made, or was about to make, an assessment, and the loss would be paid without suit, and thereupon the plaintiffs, trusting to these representations, forbore to .bring suit until after the six months had expired. The learned court below admitted the evidence offered in support of this allegation, under objection and exception by the company, and left to the jury the question whether the representations had been made as alleged, charging that, if believed, they constituted an estojapel against the defendant as to this defense. The action of the court on this subject is made the basis of several assignments of error. We have reached the conclusion that these assignments are sustained, and that on them the ease must be reversed.

To the reply of estoppel the company responded with the ninth condition of the policy, which is in the following words : “ And said company shall in no case be deemed to have waived a full, literal and strict compliance with, and performance of, each and every of the terms, provisions, conditions and stipulations in this policy contained and hereto annexed, to be performed and observed, by, and on the part of, the insured, and every person claiming by, through or under them, unless such waiver be express and manifested in writing under the signature of the president and secretary of said company.”

It will be perceived by this language that both parties, the plaintiffs as well as the defendant, agreed, as a part of the policy, that there should be no waiver of a strict compliance with any condition, unless such waiver should be expressed in writing and signed by both the president and secretary of the company. It is not pretended there was any such waiver. It is not alleged that either the president or secretary agreed or asserted that the policy would be paid without suit, or that no suit ' need be brought on it. The utmost that is asserted is that Reynolds, the agent who effected the policy, made such statements. These statements were communicated by plaintiffs to their counsel, who thereupon advised them to let the matter drop. Mr. Reynolds gives a different version of the conversation, and testifies that he told Dr. Conover that if any suit was to be brought it would have to be done within a specified time. The court below allowed a recovery upon the effect of the verbal declarations of Reynolds operating by way of estoppel. But the -contract of the parties expressly excluded Mr. Reynolds as a person who could make any binding declarations on the subject, whether written or verbal. Only the president and secretary combined could dispense with the necessity of bringing suit within six months, and that by an agreement or declaration in writing. To this the plaintiffs agreed, in, and as a part of the very instrument upon which this suit is brought. In such circumstances the declarations or statements of Reynolds waiving the performance of conditions are absolutely nugatory. The parties have so agreed and the courts have no right to alter the agreement of the parties in .this respect or in any other. Solemn contracts of parties reduced to writing and duly executed, would have little value if their provisions could be arbitrarily set aside and disregarded by the tribunals. This view of the case disposes of it. As Mr. Reynolds had, by the express agreement of the plaintiffs, no power whatever to waive performance of the conditions of the policy on behalf of the company, his declarations could not operate as an estoppel against setting up a breach of condition as a defence. Apart from this consideration, which is fatal, it is apparent that the representations of Reynolds were not the assertion of any fact, past or present, but constituted only a promise as to the future. The plaintiffs had no1 right under the policy to repose any confidence in such a promise, because there was an express exclusion of any authority on the part of Reynolds to make it. We are not prepared to admit that even if he had possessed sufficient authority to bind the company as to this matter, the declarations testified to by the plaintiffs were of such a character as to constitute an estoppel. In their essential feature they related only to the future action of the company, to wit, payment without suit. As to what he said in regard to there being no necessity to bring suit, it was only the expression of his personal opinion, and not the assertion of a fact. The fifth, sixth, seventh and eighth assignments of error arc sustained. The consideration of the remaining assignments is unnecessary.

Judgment reversed.