By the Court,
E. Darwin Smith, J.The motion for a nonsuit in this action was based upon several grounds then specified. It is sufficient if it was properly granted upon any or either of such grounds. The chief point discussed here, and upon which the case doubtless turned at the circuit, was whether the plaintiff was entitled to maintain the action for the loss sustained by the fire, the defendant having claimed the right to rebuild under the policy, and having elected so to do. I think I should find no difficulty in sustaining the right of the plaintiff to recover upon all the other points made by the defendant on the trial. But as I do not see any way to avoid the objection that the defendant had the election to rebuild, I think it unnecessary to discuss any other question. The policy upon which the action is brought declares, expressly, in the body thereof, that the same is made and' accepted in reference to the terms and conditions thereunto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties thereto in all cases not therein otherwise expressly provided for. Among other of the conditions annexed to said policy, in the 10th condition it is declared that, in case of any loss on or damage to the property insured, it shall be optional with the company to replace the article lost or damaged with others of the same kind and quality, and to rebuild or repair the building or buildings within a reasonable time, giving notice of their intention so to do, within thirty days after having received the preliminary proofs of loss required by the ninth article of the said conditions. Payment of losses shall be made in sixty days after the loss *619shall have been ascertained and proved. The fire occurred on the 11th of February, 1860. The proof of loss was served on the 17th of February on the defendant. On the 8th day of March thereafter the defendant served written notice upon the plaintiff, signed by its vice president, stating that the Home Insurance Company would avail itself of the condition of its policy which reserves the right to rebuild the Franklin House block, (the buildings in question,) insured to him under policy 117 of Canandaigua agency, that being the policy on which this suit is brought. I cannot see why this is not a sufficient and complete notice of the election of the defendant to restore the building destroyed by the fire, under the 10th condition annexed to the policy. It was given within the thirty days after service of the proof of loss. Condition 10, annexed to the policy, provided that it should be optional with the defendant to “ rebuild or repair,” &c. within a reasonable time, giving notice of its intention to do so within thirty days after receiving proof of the loss. This notice was explicit, and determined the option of the defendant. It was bound afterwards within a reasonable time to rebuild. This it assumed to do, and no action would lie to recover the amount of the loss sustained by the plaintiff from such fire, until the neglect of the defendant to comply with its offer and election to rebuild within such reasonable time. There is no basis made in their complaint, or in the evidence, for a recovery on this ground. On the contrary, it appears that the plaintiff refused to allow the defendant, with the other insurance companies interested in the subject, to enter upon the premises to rebuild; and it appears, besides, that the plaintiff had himself proceeded to rebuild, without waiting for the expiration of the thirty days within which the defendant was entitled to make such election.
The objection that the clause of condition 10, giving the defendant thirty days within which it should have the option to rebuild, is repugnant to the other part of said condition, in which it is stipulated that the company will pay *620the loss “ within sixty days,” &c. and the same is therefore void, is not well taken. The thirty days within which the defendant may elect to rebuild is included within the sixty days, and is simply an election to pay the loss in a particular way, i. e. in rebuilding, and is thus a provision for payment by rebuilding the premises, provided the defendant, elects so to do within thirty days. If the company does not elect to repair or rebuild within thirty days, it loses the right to do so, and must pay absolutely in cash, and the insurance money is then due in sixty days from the time the. loss is proved or ascertained.
The objection that there is no proof that Mr. Willmarth was authorized to give the notice in question, I think not well taken. He assumed to act as vice president of the defendant’s company; and it was proved by Mr. Salisbury that he was such officer, and he was acting for and in' behalf of the corporation, and his acts were .not disavowed, but affirmed by subsequent acts of the corporation and in the defense of this suit.
The objection that the defendant could not alone, within the limit of the amount of the plaintiff’s policy, rebuild the buildings destroyed, is not tenable. The company assumed to do so, and was bound to see such building repaired or restored, to absolve it from its liability to pay the $4000 on its policy. It was its business to secure the co-operation, if need be, of the other insurance companies interested in the question, in the work of the reconstruction of the building in question. But it appears that all such companies met at Canandaigua, by representatives, and there determined to join in rebuilding, and so apprised the plaintiff, and served upon him a proposition by builders to rebuild the house consumed by the fire; and it was then represented to him that all of said insurance companies had contracted with the parties Kelsey & Wells, builders in Canandaigua of conceded responsibility, to rebuild the block destroyed by the fire. This was stated to him at the time, and in the presence and *621in behalf of representatives from all the insurance companies liable for losses sustained by such fire; and subsequently, on the 27th of March thereafter, a written notice to the _ same effect was served on the plaintiff by Mr. Salisbury as attorney for all of such insurance companies. I cannot see, therefore, why the election by the defendant to rebuild, &c. was not absolutely made, in proper time; and if this be so, the plaintiff certainly cannot maintain this action. The defendant having elected to pay his loss by restoring the building burned, they cannot be required to pay in any other way. This is the contract between the parties.
The case presents several exceptions in respect to the admission or rejection of evidence, but I do not see that any evidence was rejected that would have changed the plaintiff’s case, or any admitted improperly, to his injury. The essential facts upon which the case turned at the circuit were clear and undisputed. The judge was not asked to submit any particular question to the jury, and I do not see how a new trial, if granted for the reception or rejection of evidence upon any ground specified in any of the exceptions could benefit the plaintiff. The fact is clear and palpable, upon the evidence, that the plaintiff, immediately after the fire, commenced the work of rebuilding, without waiting for the lapse of the thirty days within which the defendant had the option to rebuild; that it made the election to rebuild within the thirty days, and was prevented by the plaintiff from doing so. I cannot see, upon these facts, how the plaintiff could have had a verdict at the circuit that could have been sustained. The contract of insurance is one of strict law. Each party stands upon his strict legal rights as declared in the contract. The conditions annexed to the policy of insurance were part of the contract, and bound both parties alike. I think the nonsuit was properly granted. The nonsuit would not have been proper if there was evidence which ought to have been submitted to the jury. A judgment of nonsuit assumes that there is no such evidence, or not suffi*622cient to warrant a verdict upon any material issue in favor of the plaintiff. In granting a nonsuit the circuit judge necessarily, as a general rule, adjudges and decides that there is no such evidence; and when a nonsuit is granted, the plaintiff, if he has duly excepted to such decisions, is entitled to urge, upon the motion for a new trial, that the cause should have been submitted to the jury upon the whole case, unless the attention of the judge was called to some particular question of law, and the decision was expressly put upon some special ground, with the tacit consent of the counsel for the parties that such point was the controlling one in the case. In such event both parties would be deemed to have rested their case upon such questions, and it would be unfair to allow them to take other ground on the motion for a new trial. But that is not this case. The general exception taken here is sufficient to raise the question that the case, upon the whole evidence, should have been submitted to the jury. I think that a new trial must be denied.
[Monroe General Term, March 3, 1862.Welles, Johnson and Smith, Justices.]