When this case was before this court on a former occasion, it was held that the election to rebuild converted the contract of insurance into a building contract; and the Excelsior Insurance Company having also a policy of insurance on the building destroyed, and having united with the defendant in such election to rebuild, both companies were liable in a joint action for a breach of their agreement. The opinion was also expressed that the plaintiff might treat the election to rebuild as the election of each insurer, and for a breach of the building contract maintain an action against either company, collecting damages, however, but once. When this decision was rendered, an action was pending in favor of this plaintiff against the Excelsior Insurance Company to recover damages for a breach of the same contract on the part of that company. That action was first tried, and a verdict was rendered in favor of the plaintiff for $446.66, being two-fifths of the damages of plaintiff, according to the views of the jury in that case; such two-fifths being the proportion which the amount covered by the policy of the Excelsior Company bore to the whole insurance. The judgment entered was paid by the Excelsior Company; and the question most material which now arises is, ought the Supreme Court to have granted leave to this defendant to put in a supplemental answer setting up such judgment recovered against the Excelsior Company, and the payment of such judgment by that company. Leave to put in such answer was refused, except so far as this, allowing this defendant to plead and show payment of the $446.66 in part satisfaction of the damages. The defendant put in no further answer, and went down to trial under the original pleadings, and on such trial all evidence in relation to the recovery of the judgment and its payment by the Excelsior Company was excluded. In this latter trial the jury rendered a verdict against the defendant for $3,469.93, assessing at that amount *Page 446 the entire damages sustained by the plaintiff, and which, it will be seen, was about three times the amount of damages as found by the jury in the case of the Excelsior Company.
The defendant may be allowed, on motion, to make a supplemental answer. (Code, § 177.) If leave is given on motion, it can hardly be said that the defendant is entitled to such leave as a matter of strict right. Such applications should be granted, however, unless they have been too long delayed, are clearly frivolous, or the defense presented is so inequitable in its nature that the permission sought should be refused for that cause. (6 Duer, 661.) In this case there were, I think, no laches, nor was the defense proposed a frivolous one. On the contrary, if successfully pleaded and established by proof, it would probably have constituted a complete bar at law to any further recovery against this defendant. The application as made, however, was properly denied, because it would have been, I think, clearly inequitable to have granted it. In the assessment of damages in the case of the Excelsior Company, the jury were instructed, on the request of the defendant, to render their verdict for only two-fifths of the damages which the plaintiff had sustained by reason of the breach of the building contract by the insurance companies. If the effect of the supplemental answer might have been to prevent the plaintiff recovering any other or further damages from this defendant, then it would have been inequitable to have granted the application, and it was properly denied. What the defendant should have done, it seems to me, was, to make the application for leave to put in a supplemental answer setting up the fact of the recovery and payment of the Excelsior judgment, and at the same time tendering a stipulation to be bound by the assessment of damages in that case and allowing judgment as against the defendant for three-fifths thereof. Such an application ought to have been, and probably would have been, granted, as it manifestly would have been, I think, equitable and right. But no such application was made. The defendant insisted upon strict legal rights, and has failed. Looking at the magnitude of the verdict, as compared with that on the other trial, and substantially on the same evidence, *Page 447 it is very possible that injustice has been done to this defendant. But as the case is presented to us, I do not see how we can relieve the defendant. The judgment must be affirmed.
All the judges concurring.
Judgment affirmed.