The vote of December 9, 1873, was not an ascertainment and determination of the plaintiff's loss and damage, as contemplated by article 5 of the constitution of the company. It was nothing more than an offer by the defendants to pay the plaintiff a certain sum in full satisfaction of his loss or damage. It is clear the defendants so understood it at the time, for, at their meeting of December 14, 1873, the directors voted to refer the matter to referees, because of the refusal of the plaintiff to accept their offer. And on January 17, following, they voted unanimously to withdraw all offers made to the plaintiff.
The 5th article provides that the insured shall give notice of any loss or damage within thirty days from the time it may happen; and the directors, upon view, or in such other manner as they may deem proper, shall ascertain and determine the amount of such loss or damage. The plaintiff seasonably gave the notice, and, after the unreasonable neglect of the defendants to ascertain and determine his loss or damage, could bring his suit to recover therefor. No objection was taken at the trial that there was no averment in the declaration of such unreasonable neglect. I think the exception must be overruled.
Judgment on the verdict. *Page 163