
    Ripley vs. The Ætna Insurance Company.
    A stipulation in a policy of insurance, requiring the insured to sue, if at all, in twelve months, operates as a forfeiture, and is therefore to he construed strictly. Slight evidence of waiver, as in other cases of forfeiture, will he sufficient to defeat its application.
    The court, to aid a forfeiture, will not scrutinize very closely the verdict of a jury on such a point; nor the rulings of the judge at the trial, unless very clearly erroneous.
    A policy of insurance was based on a written survey, in the form of question and answer. To the question whether there was a watchman in the mill during the night, the assured answered, “ There is a watchman nights and to the question whether the mill was left aloneat any time after the watchman went off duty in the morning, they answered, “ Only at meal times, and on the sabbath, and other days when the mill does not run.” The Are occurred between three and four o’clock in the morning, on Sunday, when no watchman was present. And it appeared that by the custom of the mill no watch was kept, from twelve o’clock Saturday night to twelve o’clock Sunday night. Held that by express terms, as well as by custom, Sunday was excepted from the stipulation; and that the insurers were not released from their liability, by the omission of the assured to keep a watchman in the mill on that day.
    THE plaintiff brought this action as the assignee of the Glendale Woolen Company, on a policy of $12,500, dated 11th September, 1848, upon a factory, machinery, stock, &c., situate at Glendale, in Stockbridge, Mass. The policy was based upon a survey which was referred to and made a part of the policy. In the survey questions were put to the assured, and answered as follows: “ 8. Is there a watchman in the mill during the night ? Is there also a good watch clock ? There is a watchman nights; no clock; hell is struck every hour from eight P. M. till it’ rings for work in the morning.” “ Is the mill left alone at any time after the watchman goes off duty in the morning, till he returns to his charge in the evening ? Only at meal times, and on the Sabbath, and other days when the mill does not run.” “ 15. During what hours is the factory worked ? Summer, commence at five o’clock A. M., work till dark; winter, commence as soon as we can see in the morning, work till eight o’clock P. M., except occasionally running over time nights, to even up the work.” The property insured was destroyed by fire between three and four o’clock in the morning of Sunday, the 8th April, 1849. Ho watchman was in the mill, and no watch was kept, by the custom of the mill, from twelve o’clock Saturday night to twelve o’clock Sunday night. At the time of the fire there were two other policies upon the property for $12,500 each—one issued by the Protection Üompany, and the other by the Hartford Insurance Company; The three policies were founded upon the same survey. One of the conditions of the policy issued by the ÜUtna company is in these words: “13. It is furthermore hereby expressly provided, that no suit or action of any kind against said company for the recovery of any claim upon, under or by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the term of twelve months next after any loss or damage shall occur; and in case any suit or action shall be commenced against said company after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced.” Immediately after the fire, the preliminary proofs of loss, &c., were prepared and delivered to the company. At the expiration of sixty days, payment of the loss was demanded and refused. Some further attempts were made to induce the defendants to pay the loss. On the 7th August, 1849, the defendants in writing again formally rejected the claim. On the 25th and 26th days of September, 1849, suits were commenced by the insured against the defendants Upon the policy, in the superior court at Hartford, Oonnecticut. These suits remained pending until January, 1852, when they were withdrawn. On the 6th December, 1852, the Glendale Woolen Company assigned their claim to the plaintiff, who, on the 23d December, 1852, commenced this suit, demanding judgment for the $12,500 with interest.
    The grounds of defense to the action were two : First. That the questions and answers in the survey, as to a watch, were a part of the policy, and constituted a warranty on the part of the assured that there should he a watchman in the mill every night in the week, and all night j and that by the failure of the assured to keep a watch after twelve Saturday night and before twelve Sunday night, the defendants were discharged. Second. That this action was barred by lapse of time, under condition No. 13 of the policy, having been commenced nearly four years after the loss. On the trial in January, 1858, at the circuit, the presiding justice decided and ruled: First. That the survey was a warranty, and if violated, the defendants were discharged. Second. That by the true construction of the eighth question and answer in the survey, the insured were excused from keeping a watch from twelve o’clock Saturday night to twelve o’clock Sunday night, and that there was no breach of the warranty. Third. That the 13th condition of the policy (the limitation) was valid, but might 'be waived. The questión of waiver of limitation was the only one submitted to the jury. The jury rendered a verdict for the plaintiff for the whole amount claimed. The counsel for defendants then moved, upon the minutes of the judge,' to set aside the verdict, which motion was denied. Judgment having been entered upon the verdict, the defendants appealed from the judgment, and from the order denying their motion to set aside the verdict.
    
      M. Porter and W. M. Evarts, for the appellants.
    I. The eighth question in the survey, with the answers, constitute a warranty on the part of the insured. (Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. Rep. 19. Houghton v. Manufacturers’ Ins. Co., 8 Metc. 114. Farmers’ Ins. Co. v. Snyder, 16 Wend. 481. Alston v. Mechanics’ Ins. Co., 4 Hill, 330. Wood v. Hartford Ins. Co. ,13 Conn. 533-45. Jennings v. Chenango Mu. Ins. Co., 2 Denio, 75, Kennedy v. St. Lawrence Mu. Ins. Co., 10 Barb. 285. Sexton v. Mont. Co. Mu. Ins. Co., 9 Barb. 191. Wall v. Howard Ins. Co., 14 Barb. 
      383.. Gates v. Madison Co. M. Ins. Co., 2 Comst. 43. Wilson v. Herk. Co. Ins. Co., 2 Seld. 53.)
    II. By the true construction of the eighth question and answers, the insured were bound to keep a watch in the mill all night, every night in the week, and the failure to keep a watch after twelve o’clock Saturday nights and before twelve o’clock Sunday nights, was a breach of the warranty, and discharged the defendants. This construction was given to the words by the court in Connecticut in the case above cited. (21 Conn. Rep. 19.) The plaintiff, on the trial, virtually conceded that this construction was right. The answers were the language of the insured, and, by a familiar rule of construction, are to he taken most strongly against the party making them. The ruling of the judge, that by the true construction of the survey the insured were excused from keeping a watch from twelve o’clock Saturday night to 12 o’clock Sunday night, was erroneous, and the exceptions were well taken.
    III. The provision in”the policy that no suit should he sustained against the company for any claim under the policy, unless commenced within twelve months next after the loss, is valid and binding. (Gray v. Martford Ins. Co., 1 Blatchford, 280. Willson v. Ætna Ins. Co., 27 Verm. R. 99.) (1.) Such a limitation of the right of action is not contrary to public policy. (Williams v. Vermont Ins. Co., 20 Verm. Rep. 222. Leadbeater v. Ætna Ins. Co., 1 Shep. 267. Worsley v. Wood, 6 Tenn. R. 718.) (2.) Compliance with the provision on the part of the assured, is a condition precedent to his right of action, and no court of law or equity can dispense with the performance.
    IV. The evidence -admitted, to establish a waiver of the limitation, by the defendants was incompetent and irrelevant, and the defendants’ exceptions thereto were well taken. (Dawes v. North River Ins Co., 7 Cowen, 464.)
    V. There was no evidence competent to show a waiver of the limitation, and the judge erred in submitting that question to the jury. There was no evidence xohatever “ of a positive act of the defendants which was intended to induce and did induce the ihsured to postpone bringing the suit until after the expiration of twelve months.” As the case showed that the insured commenced suit within six months after the fire, it was impossible to prove a waiver under the above charge.
    VI. The finding by the jury of a waiver, was clearly unsupported by evidence, and directly against the charge of the judge, and was doubtless produced by the improper evidence admitted for other purposes.
    VII. The plaintiff is the assignee of the Glendale Woolen Company, and can recover the loss of that company only on the buildings and machinery. The stock belonged to H. Sheldon & Co., and the loss was payable to them. The insured brought separate suits in Connecticut. The recovery should have been limited as prayed for by the defendants’ counsel.
    
      David Dudley Field, for the plaintiff.
    I. The exceptions to the charge, and refusal to charge, all depend upon the correctness of the decision respecting the construction of the survey. That construction was right. Taking the whole of the survey together, it is manifest that the parties never expected that there was to be a watchman after the commencement of the sabbath, at midnight, which was on the Saturday following. The word “ nights” does not mean all the time of darkness5 or natural nights. The word “sabbath” does mean all the time between 12 o’clock Saturday night, to 12 o’clock Sunday night. The answer to the 8th interrogatory is not affirmative merely. The rest of the answer is to be understood with qualifications, for the bell does not ring every hour on Sunday. The next answer showed that the mill was left alone on Sunday. The 9th interrogatory and answer show that the word “ daily” has a restricted signification. In the answer to the 15th interrogatory, the word “ nights” is used in a restricted sense. The questions are all asked with reference to the days of work, and the danger of working the mill.
    II. The verdict was not only not against the weight of evideuce, but most clearly in accordance with it. The trial occupied several days; and although most of the evidence was given upon a point which was afterwards taken from the jury, that which related to the waiver, abundantly sustained it. After the negotiations between the parties, the garnishee suits and the efforts made to remove them, it would be most inequitable for the defendants to insist that the lapse of the intervening time constituted a defense. The proof given came up to the affidavits made on the first trial, and which the general term held * should have been received; and was sufficient to establish the waiver.
    III. Besides, if it were necessary to take the point, the plaintiff submits that the twelve months’ limitation could have no just application to this case, which is in effect an action to reform the policy, and thus recover the loss upon the policy reformed. The condition could not begin to take effect till the policy was made complete.
    IV. And still another point might be well taken, that the defendants have deprived themselves of the privilege of the limitation, by rejecting the arbitration, which was equally a condition annexed to the policy, and both were accepted together. The defendants cannot justly claim the benefit of one, and repudiate the other.
   By the Court, Roosevelt, P. J.

This court at general term have decided that a stipulation requiring the insured to sue, if at all, in twelve months, although binding originally, may be waived by the language or conduct of the parties; and the jury on the second trial having found that in the present instance there was such waiver, we are now to inquire whether that finding and the rulings which led to it were warranted by the law and the testimony. A twelve months’ statute of limitations, although assented to by the parties, operates as a forfeiture. It is therefore to be construed strictly. Slight evidence of waiver, as in other cases of forfeiture, will be sufficient to defeat its application. A positive act of the defendants, intended to induce postponements,” is not necessary. Silence on the subject, in the midst of negotiations for settlement during the year, however intended, was held by the general term to be competent evidence to go 'to the jury, and if competent, its weight was to be determined by them. The court, especially to aid a forfeiture, and a very harsh one, too, will not scrutinize very closely their verdict on such a point; nor, I may add, the rulings of the j udge at the trial, unless very clearly erroneous. Dismissing, then, the question of the twelve months instead of six years’ limitation, which was in effect disposed of in the order directing the second trial, I shall proceed to consider the case on its merits.

It is contended by the insurance company that by a stipulation in the policy, the insured were to keep a watchman in the mill every night; that the loss sued for occurred in the night time; that there was no watchman on the premises when it occurred, and as a consequence, that the company are not bound to indemnify. The fire, it is conceded, took place on the morning of the 8 th of April, 1849, between 3 and 4 o’clock, and of course in the night time. It was, however, a Sunday; and the sabbath, it is contended, by express terms, as well as by custom, was excepted from the stipulation—a position, which, as it seems to me on both grounds, is well taken. The policy was based on a written survey, in the form of question and answer. To the question' whether the mill was left alone at any time' after the watchman goes off duty in the morning, the parties answered, “ Only at meal times, and on the sabbath, and other days when the mill does not run.” Literally construed, this language perhaps imports that the watchman, although off duty on the sabbath, was only so during the same hours as on other days—a construction which, it is supposed, is confirmed by the answer to another interrogatory, in which the parties, when asked whether there is a watchman in the mill during the night, respond, without exception, There is a watchman nights.” How, it seems to me, that as the parties had the idea of the sabbath in their minds, and as all the interrogatories were written down and all together read over before any one was answered, if it had been intended that any portion of the sabbath was to be violated by service labor, the expression used, instead of being merely " nights” would have been “ every night,” or perhaps still stronger, “ every night, Sundays included.” Suppose, speaking of a pre-eminently industrious mechanic, or even professional man, one should say that he worked hard o’nights, would any person understand that the expression was intended to convey' the idea that he worked after 12 P. M. on Saturday, .and before 12 P. M. on Sunday ? All language, be it ever so general, has its implied limitations— and even the man who is " forever at work,” rests some portion of the 24 hours, and some one day of the seven. If, then, he who is " forever at work,” rests on Sundays, and before daylight as well as, after, he who only works." of nights,” must certainly be regarded as having the same privilege.

[New York General Term,

May 2, 1859.

Roosevelt, Clerke and Pratt, Justices.]

As to so much of the loss as arose from the destruction of the “ stock,” the indemnity by the express terms of the policy was payable, not to the mill owners but to Sheldon & Oo., the owners of the stock. The mill owners, therefore, even if they desired to do so, could not assign the claim to the plaintiff. They occupied the same position in that respect as mortgagors, taking a policy in their own name, but with the customary clause, “ Loss, if any, payable to A. B., mortgagee.” A. B. and A. B. only in such case—the mortgage being unsatisfied—■ could maintain the action. Sheldon & Go., so far as respects the stock, were not only the sole parties in interest, but the sole parties to whom the insurers, in case of loss, had, as we have seen by the terms of the policy, contracted to pay. A new trial must therefore be granted, unless the plaintiff waives that portion of the damages found by the jury, which is applicable solely to the stock. If that be waived, judgment for the balance should be entered for the plaintiff.  