Plaintiffs’ automobile, insured by the defendant for $2,500 against loss by fire, was, as the plaintiffs claim, totally destroyed by fire, and proofs of loss filed as required by the policy. The car had broken down upon the road, and was left at the roadside in *382charge of the chauffeur two or three days before the fire. The chains had been taken from the car and left near it at the roadside. The defendant’s representatives examined the car and made inquiry as to the fire, and on October 25, 1911, wrote the plaintiffs that as the car was damaged and taken apart to a considerable extent prior to the fire, and several parts had been taken from the car before the fire, the company would settle by paying $2,000, or “ we will have the car shipped to New York for repairs,” and requested a reply as to which of these propositions plaintiffs would accept. The plaintiffs replied, October twenty-sixth, “If you make the car as good as before the fire, and not delay us too long, that will be all right,” and stated that no parts of the car had been removed previous to the fire but the chains, which had been located. On November second defendant’s representatives wrote that they had arranged to have the car shipped to New York, where they would proceed with the repairs, saying, “We estimate that it will take about four (4) weeks to repair it,” and asked the plaintiffs to ship any parts which were not with the truck. November tenth defendant’s representatives wrote that the repairs were started and asked the plaintiffs to ship the chains. January eighth defendant wrote the plaintiffs that the car had been fully repaired and made as good as before the fire according to the correspondence and plaintiffs’ agreement of October twenty-sixth, and stated that upon receipt of advices from them defendant would, as agreed, attach to the car free of expense any model of body plaintiffs might suggest, not to exceed the cost of the body upon the car originally, concerning which it shall be glad to have advice, and continued: “We hereby tender to you the said machine so repaired, and offer to deliver the same to you in Troy or any other place that you may name, free of expense, upon receipt of such information as to plac.e of delivery.”
No communication was made by the plaintiffs after their letter of October twenty-sixth, and the defendant apparently took no further action regarding the car after its letter of January eighth. This action was brought upon the policy June 21, 1912, and the plaintiffs were nonsuited, the court holding that, no recovery could be had upon the policy, and that the *383plaintiffs’ only remedy was upon the agreement to repair, which was not covered by the litigation. The plaintiffs excepted, and asked to go to the jury upon the original contract of insurance, which request was denied and exception taken.
The defendant was liable upon its policy of insurance. The plaintiffs offered to take the repaired car in satisfaction of their claim if it was not delayed too long about repairs. If the defendant had repaired the car, making it as good as before the fire and returned it to the plaintiffs within a reasonable time, that satisfied the policy. If it failed to do so the plaintiffs have not lost their right to recover upon the original policy. The defendant could get no benefit from its failure to perform the agreement to repair. The defendant understood that four weeks would be a reasonable time for repairs. From the date of the plaintiffs’ letter to the time the defendant suggested the car was all ready but the body, some seventy-four days had elapsed. It does not appear how much more time would have been required to properly put on the body and return the car to Troy. We cannot say that the defendant made the car as good as it was before the fire and had not delayed the plaintiffs too long. Plaintiffs’ letter fairly meant that if the defendant complied with its terms it was all right and if it did not comply with them the letter was of no force. A defense based upon the letter must show that the defendant complied with its terms.
The action was properly brought upon the policy, leaving the defendant to show that the plaintiffs had agreed to accept repairs in satisfaction of the policy and that the repairs were made as agreed and the terms of its letter with reference to them complied with. The nonsuit was, therefore, erroneous. The judgment should be reversed and a new trial granted, with costs to appellants to abide the event.
All concurred, except Smith, P. J., dissenting in opinion in which Lyon, J., concurred.