
    No. 490
    FIRE ASSO. OF PHILA. v. AGRESTA
    No. 19763.
    Supreme Court
    On motion to certify.
    Dock. Apr. 9, 1926.
    647. INSURANCE — Where a fire insurance policy provides that the amount of loss shall be payable 60 days after ascertainment of a loss is made either by agreement, expressed in writing, or by filing with the company an award of appraisers, and that “No suit or action on this policy shall be sustainable - - - - unless all the requirements have been complied with, may suit be filed by the insured before an ascertainment of the loss, either by agreement or award, is made?
    Attorneys — Duffey &Duffey, Cleveland, and Arthur Rinto, Ashtabula, for Asso.; Perry, Perry & Perry, Jefferson and J. H. Copp, Geneva, for Agresta.
   Joseph Agresta filed this action originally in the Astabula Common Pleas against Fire Association of Philadelphia to recover on a fire insurance policy.

It appears that on May 12, 1924 Agresta’* stock of groceries, covered by the policy in question, was damaged by fire. On July 3, 1924 Agresta furnished the company with statement of the loss upon which it took issue and referred him to the terms of the policy which in part provided as follows:

“The amount of loss or damage for which this company may be liable shall be payable 60 days after----ascertainment of the loss or damage is made either by agreement between the insured and this company, expressed in writing, or by the filing with this company of an award as herein provided”, and, “No suit or action on this policy shall be sustainable - - - - unless all the requirements of this policy have been complied with.”

On Nov. 20, 1924 Agresta filed suit without having taken steps to secure an appraisal.

The trial court overruled the motion of the company for a directed verdict on the theory that the insured in reading his policy would be led to believe that the company not having demanded an appraisement did not require one. Judgment was rendered on the verdict for Agresta which was affirmed by the Appeals.

The Association, in the Supreme Court, contends :

1. That where payment under the policy is postponed until the amount of the loss is ascertained, that the ascertainment must be had or a waiver thereof pled and proven before judgment can be had for the assured.

2. That the policy was an agreement to pay only after an award.

3. That a compliance by the assured with all conditions and terms, of the policy is a condition precedent to "the maintenance of a suit for recovery. ' "  