We have recently held in a contract of insurance like this that no action which is commenced after the expiration of the time within which it is agreed any action shall be commenced, can be maintained, unless the performance of the condition to bring suit within the specified time is (1) rendered impossible through the existence of such facts as by the law of contract will excuse the performance of such a condition, or (2) is waived by the insurer, or (3) the insurer has been guilty of such conduct as in law will constitute an estoppel to the assertion of its nonperformance.Chichester v. New Hampshire Fire Ins. Co.,74 Conn. 510.
Applying that decision to the case before us, it is clear that the allegations of paragraph eight are immaterial.
The facts stated in paragraph nine do not support any claim of waiver, nor do they furnish any legal excuse for nonperformance of the condition, unless an equitable estoppel is the legal inference from such facts, in connection with others alleged in the complaint. *Page 687
The facts alleged are these: 1. At some time within the year following March 6th, 1900, negotiations were pending between the plaintiff and defendant for the settlement of plaintiff's claim, which were carried on and encouraged by the defendant, and were continued until within a short time before March 6th, 1901, when they were broken off by the defendant, who then avowed its intention of not paying the loss. 2. The plaintiff was induced by the conduct of the defendant in carrying on and encouraging said negotiations, to believe, and did believe, that no suit would be necessary to enforce her claim. 3. After the termination of the negotiations, and within the year, the plaintiff commenced an action which was defeated for reasons not touching the merits of her claim. 4. Relying upon said conduct of the defendant, this suit was not sooner brought, and has been brought within a reasonable time after the termination of said negotiations.
Whatever elements may be necessary to the equitable estoppel claimed, it is at least essential, first, that the failure of the plaintiff to bring suit during the time covered by the negotiations was due to her belief in the intention of the defendant to pay her claim without suit, and that this belief was induced by acts and conduct of the defendant calculated to produce the same as their natural and reasonable effect; second, that the negotiations were not broken off until the year was so nearly expired that the plaintiff was thereby practically prevented from bringing suit within the year.
The complaint does not allege either of these essential elements. Negotiations for settlement of a claim imply a contest, as well as a desire to avoid a contest. It is not the natural and reasonable effect of carrying on such negotiations to induce a belief that the claim, or such part thereof as the claimant insists upon, will in any event be voluntarily paid, although for reasons of policy a suit may not be commenced during their pendency.
There is no allegation that the negotiations were not carried on in good faith, or that they were encouraged with a view to deceive the plaintiff, or that the defendant made any *Page 688 promises in words, or equivalent acts, that should in equity estop it from now insisting upon the performance of the plaintiff's promise to bring suit within the year.
As to the second element, there is no allegation that the negotiations were so prolonged that the plaintiff was thereby prevented, or practically prevented, from bringing suit within the year. The allegation is that the negotiations were broken off "a short time before March 6th, 1901." Consistently with the facts appearing in the record, this short time may have been a few days and may have been a few weeks. However long or short this time may have been, it appears affirmatively that the plaintiff had sufficient time to, and did, commence an action after the negotiations were broken off and before the year expired, and that this present action was brought after the right to maintain it had ceased, not because the plaintiff had been prevented from bringing it within the time, but because the action she did commence failed through her own inadvertence or mistake. Such failure furnishes no ground for bringing this action. Chichester v. New HampshireFire Ins. Co., 74 Conn. 510. The complaint is demurrable.
It is claimed that the actual defects are not specifically pointed out by the demurrer. The reasons given for the insufficiency of the facts, alleged as an excuse for the nonperformance of the plaintiff's contract to bring suit within a year, are, because it appears that the negotiations referred to in paragraph nine were terminated before the expiration of the year; that after the termination of the negotiations the plaintiff had ample time to bring the suit; that the plaintiff was not misled to her prejudice by the acts of the defendant or the negotiations referred to in the complaint, nor in any manner prevented by the defendant from bringing a suit within the year; that the failure of the former action, referred to in paragraph eight of the complaint, was not through neglect or fault or any wrongful act of the defendant, but the same failed solely because the complaint therein was insufficient.
We think these reasons fairly indicate the substantial defects *Page 689 in the complaint, and direct the attention of the plaintiff to the principles of law which render it insufficient.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.