Brown v. Savannah Mutual Insurance

McDonald, J.

By the Court. delivering the opinion.

,[1.] The first assignment of error in the decision of the .presiding Judge in the Court below, presented in this record, ■cannot be supported. The objection made by the defendant to the payment of the loss, was, prima facie a good one, and insuperable in a Court of Law, as is manifest by the complainant’s resort to a Court of Chancery for relief. It cannot be that a valid legal objection to the payment is a waiver of .all other objections; or that the plaintiffs should be entitled to recover, without the proof required by the stipulations in their policy, if they could remove the objection made, by application to a Court of Chancery. The object of the bill is, in effect, to reform the policy, as to the description of the property, and to obtain a decree for the amount of the loss. The alleged mistake in the description of the property, and that alone gives a Court of Equity jurisdiction of the cause, and having jurisdiction, it will make a full decree so as to settle finally the rights of the parties. But the complainants must go on and make out their case quite as fully as if they were suing at law, and the objection which sent them into equity cannot be invoked as an admission b]r the defendant of a liability to pay whatever was demanded, or as a waiver of any of its rights.

[8.] The next assignment of error is upon the decision of the Court on the 13th condition of the policy of insurance. The Court held that said condition was not contrary to law and public policy. The rule is that a condition in a contract which is either mala prohibita or mala per se is void, and cannot be enforced. If it do not contravene public policy it is good. No principle of public policy is violated by a condition in a policy of insurance, that the injured party shall sue within six months from the time of the loss or lose his remedy. There is no reason why a party may not enter into a covenant;that for an alleged breach of contract, the injured party shall sue within a period less than that fixed by the statute of limitations as a bar. The statute was intended for the benefit of defendants and. is founded upon the presumption of payment, or the loss of evidence which might impeach the plaintiff’s right. The parties may fix upon a shorter period, 'and the stipulation violates no principle of public policy, provided the period fixed he not so unreasonable as to show imposition or undue advantage in some way. The case of Goldstein vs. Osborne, 2. Car. & Payne 550, was assumpsit on a policy of insurance. It contained a condition, that if any difference should arise on a claim it should be submitted to arbitration. This claim had not been submitted to arbitration, and it was inKisted that the plaintiff could not recover on that account. The plaintiff contended that the construction of the contract was that the case was to be referred when the difference between the parties was as to the amount claimed, and not when the plaintiff’s right was denied altogether. The Chief Justice who tried the cause declared that he would be waiy ranted in awarding a nonsuit, but that it would be better for the interest of the public, to allow the case to go on.

Judgment affirmed.