Whipple v. North British & Mercantile Fire Insurance , 1875 R.I. LEXIS 11 ( 1875 )

DtJKEEE, C. J.

Tbe exceptions make it necessary for us to construe tbe agreement referred to in them. We think tbe true construction is tbat tbe parties agreed to fix tbe loss and damage, subject to tbe terms and conditions of tbe policy, and tbat tbe words, “ subject to tbe terms and conditions,” mean subject to all tbe terms and conditions, excepting such as are superseded by tbe fact tbat tbe loss and damage bave been fixed. Ordinarily, without doubt, an adjustment of loss is equivalent to a promise to pay tbe loss so determined ; for ordinarily an adjustment implies a liability for tbe loss and a consequent promise to pay it. But an adjustment does not necessarily imply liability, and accordingly it may be made under a reservation of tbe question of liability. Tbis appears to bave been done in tbe case at bar. Tbe adjustment was made subject-to tbe terms and conditions of tbe policy ; and by tbe terms of tbe policy tbe company is relieved from liability in case certain conditions or stipulations are not fulfilled by tbe insured. Tbe adjustment, in view of tbe qualifying words, means simply tbat tbe company will pay the loss as fixed under the terms and conditions of the policy, if under them the plaintiff is entitled 'to payment. The plaintiff contends that the qualifying words are ambiguous, and that, in the light of the testimony, they must be construed to relate simply to the provision of the policy in regard to the time of payment. We are not of that opinion. We think the construction we have given is the obvious and natural construction ; that it is the correct construction ; and that,, if it had been adopted at the trial, the ruling and charge would have been other than they were. Nezu trial granted.

B. N. Lapham Charles A. Wilson, for plaintiff. Charles Hart, for defendant.