I concur with Mr. Justice O’Brien as to-the disposition made'of the claim.against the defendant on account of the loss by the failure of Dally & Collins, but I do not agree that the clause 12a annexed to the policy is so uncertain as to its real intent that it cannot operate as a term -of the policy. By the policy the defendant agreed to *572indemnify the plaintiff against loss “to the extent of and not exceeding fifteen thousand dollars, resulting from insolvency of debtors, over apd above a net loss of $3750, thirty-seven hundred fifty dollars, first to be borne by the said Indemnified.” By clause 12a, which by the terms" of the policy'itself was made a part of the' contract as fully as if it were recited at length therein, it is provided : “ To simplify adjustment and to avoid disputes, it is agreed that such sum of gross loss shall be the limit to be borne by the Indemnified, as less 25 per cent will equal the agreed amount of annual net loss.” It is admitted in the agreed statement of facts that the sum of $5,000, less twenty-five per cent, will equal the agreed amount of annual net loss, viz., $3,750. In order to provide a method by which such net loss could be ascertained, it was agreed that, a gross loss of $5,000 would produce a net loss of $3,750, or, in other words, that by the agreement in the case of debtors owing $5,000, an amount should be fixed which would result in a net loss to the creditor of $3,750, and there should, therefore, be no claim . against the defendant until there was a gross loss of $5,000; it being ' assumed that where debtor's of the insured failed, owing $5,000, the insured would receive as dividends or part payment of such $5,000 indebtedness twentyrfive per cent, and that to enable the insured to obtain that sum of twenty-five per cent it was agreed that the claim going to make up this sum of $5,000 should not pass to the defendant, but should remain the property of the insured who would be entitled to receive any dividend or payments made thereon. I fail to see where there is any difficulty in construing this condition annexed to the policy. Where a loss is incurred in consequence of the failure of a debtor, the' gross loss would be the amount owing by the debtor at the time of the failure.. The'net loss would be the amount that' the creditor would lose after all dividends uj>on the debtor’s estate, or all partial payments that would be received by the creditor on account of the indebtedness after the failure. It was the net loss of $3,750 that the assured was to sustain before there was a liability. under the policy, and in order to ascertain what that net loss should be the parties agreed that it was to be considered that the gross loss or the amount that the debtor owed when he failed would be reduced by twenty-five per cent by dividends received from the debtor’s estate. The parties have made. their contract, which seems .to. me *573to be reasonably clear- and capable of enforcement, and I can see no reason why it should not be enforced. I think, therefore, that the defendant was liable only where the loss sustained by the plaintiff by the failure of his debtors exceeded the gross sum of $5,000, and as there is no evidence that such a gross sum was exceeded, the defendant was entitled to judgment. For that reason I think the judgment should be reversed.
McLaughlin,- J., concurred.
Judgment modified as directed in opinion and as modified affirmed, ■without costs of appeal.