[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 628 In July, 1892, the plaintiffs, as co-partners and wool merchants, doing business in the city of New York, took out a line of insurance upon their stock, and, among other policies, was the one issued by the defendant for $5,000 to run until the 14th day of July, 1893. It appears that certain alterations were to be made in the building in which the plaintiffs were doing business, and upon their completion a lower rate of insurance was to be fixed by the defendant. On the 26th of August, 1892, the plaintiffs sent this policy to the defendant's general agents in the city of New York for the purpose of having the rates reduced. The next day a fire occurred, partially destroying the stock of goods insured. About ten days after the fire the policy was returned to the plaintiffs with an indorsement dated August 22d 1892, by which the rate was reduced, and the 80 per cent co-insurance clause contained in the policy at the time it was sent to the defendant on the 26th of August was changed to a 100 per cent co-insurance clause. In the latter part of October, 1892, *Page 629 by agreement of the parties, the sound value of the insured property belonging to the plaintiffs at the time of the fire was fixed at the sum of $132,023.00, and the amount of loss and damage by reason of the fire was adjusted at the sum of $87,000. It was also agreed that the total insurance amounted to $103,223.00.
The trial court finds that there would be due on the policy in suit under the 80 per cent co-insurance clause the sum of $4,118.61, and under the 100 per cent co-insurance clause the sum of $3,294.88, making a difference against the insured of $823.73, the amount sought to be recovered in this action. It also finds that the plaintiffs furnished to the defendant proofs of loss, in which they stated that the policy contained the 100 per cent co-insurance clause, and they claimed that there was due on the policy the sum of $3,294.88.
Thereafter the plaintiffs received from the defendant a draft for that amount, less the usual discounts, and gave a receipt in full settlement of all claims under the policy.
It is claimed by the plaintiffs that up to a date subsequent to receiving the draft and executing the receipt they supposed that the indorsement upon the policy under date of August 22d 1892, was placed there prior to the date of the fire. They also state that shortly after receiving payment from the defendant they became satisfied that the change in the policy occurred after the happening of the fire, and that at the time the company's liability became fixed the policy existed in its original condition; that the fact that the change in the policy occurred after the fire was known to the defendant and its agents and not disclosed by them to the plaintiffs; that the acceptance by the plaintiffs of the smaller amount due under the policy was not the result of any compromise or settlement involving any dispute as to the terms of the policy. On this state of facts the plaintiffs assert they are entitled to have the policy reformed, the settlement set aside, and to recover a judgment for the difference between the amount received and the amount which would have been recoverable under the policy as originally issued. *Page 630
The plaintiffs' action is thus based upon an alleged mistake on their part and a state of facts, which, if proved, would be a fraud on the part of the defendant which induced the plaintiffs to act on their mistaken view of the situation.
The defendant, by its answer, denies certain allegations of the complaint, and sets up an understanding and agreement to the effect that when the rate of insurance was reduced the policy should be subject to a full 100 per cent co-insurance clause.
The answer further avers that the amount received by plaintiffs from defendant was with a knowledge of the facts and in full settlement and compromise of all claims under the policy.
We think the trial court erred in not permitting the plaintiffs to prove the alleged facts on which their case rests.
The record, as now presented, shows no compromise of a disputed claim; the plaintiffs proceeded with the settlement on the assumption that the policy had been changed before the fire at the request of their brokers or agents; the settlement consisted of the usual formal proofs of loss made out by plaintiffs, asking for a certain sum which the defendant paid and received therefor the receipt in full of plaintiffs, and a surrender of the policy.
It may be that the defendant, on a proper trial of this case, can prove all the defenses pleaded, and, among others, show a state of facts amounting to a compromise of a disputed claim and a payment which operated as an accord and satisfaction, but there is nothing in the present record to indicate such a settlement between the parties.
We are referred by the learned counsel for the defendant to a recent case in this court as justifying the rulings of the trial judge (Nassoiy v. Tomlinson, 148 N.Y. 326). The case cited deals with the law of accord and satisfaction where there was a dispute as to which of two specified amounts was due, and the smaller sum was accepted with a full knowledge of all the facts.
The case at bar, as now presented, discloses no such situation. The trial judge treated the settlement of the loss as if *Page 631 it were a full accord and satisfaction and would not allow the plaintiffs to prove the facts constituting their cause of action.
The argument of this cause took a wide range on both sides, but, as we think a new trial must be ordered, it is unnecessary to consider the many legal questions presented.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to plaintiffs to abide the event.
All concur.
Judgment and order reversed.