Statutory Provisions. Ins. Co. v. Pulver, 27 Ill. App. 17; aff'd 126 Ill. 329; 18 N. East. Rep. 804. 169. California. Measure of indemnity. 2 Deer. Annot. Civ. Code, Cal., 166a. Under the Iowa statute mak-§ 2,756. ing the policy prima facie proof of value 170.- Open and valued policies. 2 of a building, plaintiff is not obliged to Deer. Annot. Civ. Code, Cal., §§ 2,594offer any evidence in the first instance; 2,597. but may introduce evidence on that subject in rebuttal of that put in by the company. *Martin v. Capital Ins. Co., 52 N. W. Rep. 534 (Iowa). 171. Canada, Quebec. Sum insured does not constitute proof of value, which must be established as required by condition in policy and general rules, unless there is special valuation in the policy. Sharp Civ. Code (1888), § 2,575. 172. Delaware. Amount written on real property conclusive evidence of value; endorsement of value must be made and if owner effects other insurance in excess all insurance becomes void. L. Del., Subd. VI. Loss or damage. Nos. 11, 1889, ch. 695. 173. Georgia. Value estimated at time of loss; contingent profits excluded. Georgia Code, 1882, § 2,815. 174.- Amount of recovery-full amount of loss. Georgia Code, 1882, § 2,814. 175. Iowa. Amount written in the policy prima facie value; but this does not preclude company from showing actual value and depreciation. McClain Annot. Code, Iowa, 1888, § 1,734. 176. Mississippi. Amount named in the policy is conclusive as to value; and the measure of damages in case of total loss shall be the amount named in the policy, less whatever depreciation in value the property may have sustained between the time of issuing the policy and the date of the loss. Annot. Code of Subd. II. Books of account, etc. Nos. Miss., 1892, § 2,330. 26, 27. Section seventeen. Appraisal. No. 85 et seg. Section eighteen. Payment of loss. Nos. 50, 55, 56, 80. Section nineteen. 177. Missouri. Amount written in policy made the measure of damage, but depreciation in value may be shown from time of issuing the policy; in partial loss to be ascertained in proportion as prescribed. Applies only to real property. 2 R. S. Subd. I. Apportionment. Nos. 30, 31, Mo., 1889, § 5,897. 32, 33, 34, 61, 62. Subd. II. Reinsurance. No. 48. STATUTORY PROVISIONS. 168. Arkansas. Amount written in policy made conclusive evidence of value, but excepts personal property. L. Ark., 1889, ch. 42, p. 57. 178. In case of partial destruction to pay the damage or repair at option of the insured. 2 R. S. Mo., 1889, § 5,899. 179.- When a company vexatiously refuses to pay a loss," a jury may allow ten per cent. on amount of the loss as extra damages. 2 R. S. Mo., 1889, § 5,927. 180. Nebraska. Amount written in policy on real property conclusive evidence of value and measure of indemnity. Comp. Stat. Neb., 1891, p. 536, § 43. 181. North Dakota. Open and valued policies. Comp. L. 4,152. Statutory Provisions. Dak., $$ 4,149- of value. Stat. Oklahoma, § 3,154. Effect of valuation in the policy, Id., § 31, 182.- Measure of indemnity. Comp. 159. L. Dak., § 4,257. 183. New Hampshire. If insured buildings totally destroyed, sum insured taken to be value of interest as described unless fraudulently obtained; partial destruction actual damage only. Pub. Stat. N. H., 1891, pp. 485, 486, § 5. 184. Ohio. Valuation of buildings by company's agent required for purposes of insurance; in absence of increase of risk or intentional fraud, amount written in policy shall be paid in case of total loss; in case of partial loss the full amount of the partial loss shall be paid. 2 R. S. Ohio (S. and B.), 1890, § 3,643. 186.- Open and valued policies. Stat. Oklahoma, §§ 3,095–3,098. 187. Oregon. Must pay full amount of policy provided worth at time of loss full amount for which insured. Otherwise full value. 2 Hill Annot. L., Ore., 1887, § 3,577. 188. South Dakota. See North Dakota. 189. Texas. Policy made a liquidated demand for its full amount; with proviso that it does not apply to personal property. 2 Sayles Tex. Civ. Stat., 1888, art. 2,971. 190. Wisconsin. Amount of insurance written in policy on real property 185. Oklahoma. Total loss required conclusive as to value, if wholly destroyed. to pay full amount of policy; but amount 1 San. & B. Annot. Stat. Wis., 1889, in policy limited to seventy-five per cent. $ 1,943. SECTION III. It shall be optional, however, with this company to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time, on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this company of the property described. New York Standard Form. I. REPAIR, REBUILD, OR RE- General rules. Rebuilding or repairing. 4.- An appraisal or arbitration as to amount of damage does not necessarily waive an existing claim or demand for damages for a failure to rebuild, company having previously notified the insured of its election to rebuild. Good v. Buckeye Ins. Co., 15 Ins. L. J. 3; 1 West. Rep. 527; 43 Ohio St. 394. 5.- Effect of exercise of option to rebuild on a pledged policy. Seybold v. Garceau, 31 L. C. Jur. 159 (Can.) 1. General rules. A notice by an in- 6. The time provided in a policy of surer, under a condition of the policy au- fire insurance within which the company thorizing him at his election to rebuild or shall exercise its option to rebuild or pay repair in case of loss, that he elects to re- the loss "after proofs of loss are combuild or repair, is a waiver of any defense pleted does not begin to run until after based upon misrepresentations by the as-corrected proofs are received by it, where sured at the time of the application; if the original proofs are returned for corthe fact of such misrepresentations be rection and the insured furnishes corknown to the insurer when he gives the rected proofs. *Kelly v. Sun Fire Office, notice. Bersche v. Globe Mut. Ins. Co., 141 Pa. 10; 20 Ins. L. J. 407; 21 Atl. Rep. 31 Mo. 546. 447; 28 W. N. C. 269; 22 Pitts. L. J. N. S. 49; 48 Phila. Leg. Int. 344. 2. The election to restore or repair must be made within the prescribed time, which cannot be extended by failure or neglect of local agent upon whom proofs were served, to forward them to the company or its general agent. Delivery of proofs to local agent is delivery to company. Ins. Co. of N. A. v. Hope, 58 Ill. 75. 3.- If company exercises its option to replace or rebuild it operates as a waiver of the clause in reference to appraisal. Wynkoop v. Niagara Fire Ins. Co., 12 Ins. L. J. 253; 91 N. Y. 478. 10 Rebuilding or Repairing. loss the assurer may either reinstate the the measure of the assured's damages is building or pay the amount of the loss as the difference between the value of the soon as proved, rent for the period occu- building as repaired, and what it would pied in rebuilding or repairing cannot be have been if fully repaired, deducting recovered as part of the indemnity to be one-fourth of their value to the estate. assured. Such rent forms a distinct in- Parker v. Eagle Fire Ins. Co., 9 Gray, 152 surable interest. Leonarda v. Phoenix (Mass.) Assurance Co. of London, 2 Rob. 131 (La.) 10.— When company has exercised its option to rebuild an injunction cannot be sustained at the instance of the assured restraining the company from thus rebuilding, notwithstanding the company proceeds without obtaining any plans of the building described, and, contrary to the objection of the assured, have varied what was the known plans of the old building. Home District Ins. Co. v. Thompson, 1 Grant Err. & App. 247 (Can.) 13.- Where a policy gives to the assurer the right of "reinstatement" in case of loss, at his option; and he elects after a loss to reinstate, and is proceeding to do so, and the municipal authorities cause the building to be taken down as dangerous; the assurer is not thereby relieved from liability, although the dangerous condition of the building was not occasioned by the fire. Having elected to reinstate, he must either do it or pay damages for not doing it. Brown v. Royal Ins. Co., 1 Ell. & Ell. 853 (Eng.) 14. An insurance company who had 11.- Policy provided that insurers insured a house from fire, with an option might rebuild or replace the property lost to reinstate it, having elected, in the or destroyed, with other of the like kind event of a fire, to reinstate it, employed or quality or pay the money, at their the defendant, a builder, to reinstate it, election, within sixty days after loss. who used the old walls so far as they After the dwelling insured by this policy remained; and when he had finished all had been destroyed, the assured endorsed but a little painting, gave one of the in on the policy "Pay the loss under the sured a small sum to complete it, and within policy to Joseph A. Tolman," got him to sign a certificate that the which was assented to by the president work was complete, and then received of the company. The company then re- payment from the company. The old built the house, and plaintiff brought walls not bearing the weight of the new suit on the policy for the amount of the work " bulged." The assured sued the policy in money. Held, that the order company for not duly reinstating the upon the policy, and assent of the com-house, and they defended the action pany, did not bind the company to pay without defendant's authority, and the the money absolutely, but only operated assured recovered damages. The comas an assignment to Tolman of the assured's claim under the policy, without affecting in the least the right of the company to replace the building, or to pay the amount of the loss in money, at their election, according to the terms of the policy; and the company having replaced the building the action could not be maintained. Tolman v. Manufacturers' Ins. Co., 1 Cush. 73 (Mass.) 12. Under a policy on a building which provides that the insurers may "make good the damage by repairs, and the insured shall contribute one-fourth of the expense," if the insurers, intending to comply with this provision in good faith, make repairs of substantial benefit, though not fully making good the loss, pany then sued the builder on his contract (the breach being an insufficient and imperfect reinstating), and also for fraudulent representations and for costs. The judge told the jury that the defendant was only bound to put the building as near as possible in the same state as before the fire; and they found that he had done so, and that the building was not less secure than before. At the close of the case the plaintiffs relied on the omission of the painting; but the jury found that the value was nominal, and that in getting the certificate there was no fraud. The verdict was entered for the defendant, the judge telling the jury that, in the absence of any express authority to defend the former action, the Rebuilding or Repairing. company could not recover costs. Held, that the direction was right, and that the plaintiffs were not entitled to a verdict, even for nominal damages; and that no amendment could be allowed. Times Fire Assurance Co. v. Hawke, 5 Hurl. & Norm. 935 (Eng.) 15.- A clause in a condition in a policy, giving the insurers thirty days within which they shall have the option to rebuild, is not repugnant to another part of such condition, in which it is stipulated that the company will pay the loss “within sixty days." Beals v. Home Ins. Co., 36 Barb. 614; affi'd 36 N. Y. 522. 16.- Where premises were insured in two separate companies for distinct sums, and each contract of insurance contained the same stipulations on the subject of electing to rebuild, and both companies united in notifying the insured of their election to rebuild after the loss; held, that the insured might maintain an action against such companies jointly or severally for a breach of the contract to rebuild, the rules of damages when partially rebuilt being the cost of completing the work. Morrell v. Irving Fire Ins. Co., 33 N. Y. -429. tention to do so, within thirty days after service of the preliminary proofs. Immediately after a loss by fire, the plaintiff laid a new foundation, and proceeded to erect a new brick building. Within thirty days the defendants gave notice that they availed themselves of the option, and would rebuild the property. Held, that under these circumstances the contract became substantially a building contract, and an action upon the policy to recover the loss could not be sustained. Beals v. Home Ins. Co., 36 N. Y. 522; affi'g, 36 Barb. 614. 20.- An insurance company electing to repair the building, employed a contractor and the assured employed an overseer of the work. The overseer was induced by the contractor to give him a certificate that the work so far was satisfactorily done, on which the company advanced money to its contractor. Held, whether the overseer had authority to give such certificate or not, yet there being no certificate provided for in the contract between defendant and contractor, and the defendant still holding | funds enough of the contractor to indemnify itself, has not been so damnified 17.- Where there is a provision in a by the certificate that the plaintiff should contract of insurance that, instead of pay-be estopped from showing the truth. ing the damages in money in case of loss, Ryder v. Commonwealth Fire Ins. Co., the insurers may elect to rebuild on giving 52 Barb. 447 (N. Y.) the notice stipulated in such contract, and a loss occurs and the insurers elect to rebuild and give the stipulated notice to the insured; the contract is thereby converted into a building contract; and the amount of the insurance named in the policy ceases to be a measure of damages. Id. 18.- Where insurers elected to rebuild and partially performed the contract, but desisted therefrom before fully completing it, the rule of damage, in an action brought by the insured for the non-performance of the building contract, is the amount it would take to complete the building by making it substantially like the one destroyed, independent of what had already been expended thereon. Id. 19. A policy of insurance contained a condition to the effect that it was optional with the insurance company in case of loss to rebuild or repair the building within a reasonable time, giving notice of their in 21.- Company had notified assured of its election to rebuild, but neglecting to do so action was brought. Contract provided that sum expended in rebuilding should not exceed amount insured. Jury were charged that "the company was bound to rebuild the building destroyed, cost what it may." Held, error. Further, that if company neglected to proceed within reasonable time after notice to rebuild, assured might disregard it and sue upon the policy, and, with proper averments, recover the amount of the policy and interest, and the rental value of the ground during time of delay caused by act of the company. Home Mut. Ins. Co. v. Garfield, 60 Ill. 124. 22.- Company having elected to repair and finally declining to do so is liable to damages caused by the delay. It must pay what it would cost to make repairs at time of refusal. Am. Cent. Ins. Co. v. McLanathan, 11 Kans. 533. |