
    FURLONG v. AGRICULTURAL INSURANCE CO.
    
      N. Y. Supreme Court, General Term, Fourth Department;
    
    
      April, 1892.
    1. Pleading; insurance?] In an action upon a fire insurance policy requiring service of proof of loss as a condition precedent, plaintiff cannot recover against defendant’s objection, if he has not alleged, as well as proved the performance of such condition.
    
    2. Evidence; insurance; over valuation?] Where plaintiff’s verified proofs of loss claimed $1,161; his attorney on the trial claimed only $450, and the verdict sustained a valuation of less than $100,—held, that this showed an over valuation, which under the usual clause prevented recovery.
    Appeal by defendant from a judgment for plaintiff entered upon a verdict, and from an order denying a motion for a new trial.
    The action was brought by William Furlong against the Agricultural Insurance Company upon a fire insurance policy.
    The opinion fully states the facts.
    
      A. H. Sawyer, for appellant.
    
      Edward H. Clark, for respondent.
    
      
       See note at the end of this case.
    
   MERWIN, J.

In the complaint in this case it is alleged that in or about May, 1886,“ said defendant duly insured plaintiff against loss or damage by fire at any time within three years from said May, 1886, and by which insurance, as stated in the contract of insurance, said defendant agreed- to pay to plaintiff all damage by fire to said house, not exceeding $1000, and all damage by fire to said contents, not exceeding the sum of $500;” that, while said contract was in full force, and on or about August 1, 1887, without fault of plaintiff, the property was totally destroyed by fire, except a few articles of little value; that by reason of such destruction plaintiff was caused a loss of $1000 on the dwelling-house, and $500 on the personal property; that “ by reason of such contract of insurance and such loss and damage, said defendant became indebted to said plaintiff in the sum of, etc., and that defendant neglects and refuses to pay the same, or any part thereof.” Judgment was demanded for $1,500, and interest from August 1, 1887. There was no allegation that any proofs of loss had ever been served on the defendant. The action was commenced on July 30, 1888. Upon the trial, the plaintiff put in evidence, as the foundation of his cause of action, a policy of insurance in the ordinary form, issued by the defendant. From this it appeared that the service by plaintiff of proofs of loss, in a certain form and within a certain time, was a condition precedent to his right to recover. Thereupon the defendant made the objection that there could be no recovery by plaintiff under the complaint by reason of the lack of any allegation that any proofs of loss were ever served. This objection the court overruled, and the defendant excepted.

This exception was well taken.

The plaintiff sought to recover upon a conditional contract, and it was therefore incumbent upon him to allege, as well as prove, the performance of the conditions precedent (Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 334; Inman v. Western Fire Ins. Co., 12 Wend. 452; 2 May Ins. § 589). The conditions do not appear on the face of the complaint. They did, however, upon the contract proved as the basis of the claim. As soon as this appeared, the defendant had the right to take the position that the allegations of the complaint were not sufficient to authorize a recovery upon such a contract. There is nothing in the answer that relieved the plaintiff in this regard. It is not there admitted or alleged that the proofs required by the policy had ever been served. The plaintiff did not apply for an amendment of his complaint. He took the risk of its sufficiency, and, as said by this court in Alleman v. Bowen (15 N. Y. Supp. 318), he cannot, on this appeal, be relieved from his position. In such a case the pleading cannot, after trial, be conformed to the proof.

Upon the facts, a peculiar case is presented. There is in the policy a provision that “ any misrepresentations, or concealment, or over valuation of property, or fraud, or false swearing in any statement or affidavit in relation to any loss or damage, shall forfeit all claim upon the company by virtue of this policy, and shall be a full bar to all remedies upon the same.” Whether there had been a violation by the plaintiff of this provision was one of the main issues at the trial. In the proofs of loss, which were verified by the plaintiff, and delivered to the company, the personal property that was lost was valued at $1,161.-60. The items making up this amount were stated in a schedule, and in the affidavit of verification it is stated that the schedule of articles lost had been carefully read to the affiant, and that he knew the contents, and that each of the articles was worth in cash the amount stated. At the trial, a list of articles was presented on behalf of the plaintiff, which, as the wife of the plaintiff testified, was a correct statement of the property destroyed, and of the value thereof. This list in value aggregated the sum of $4505 and that was claimed by the counsel for plaintiff to be the value of the personal property. The verdict of the jury was $378.30. This included the loss on the house as well as on the personal property. There has been an appraisal of the loss on the house at $275) excluding, however, a lean-to, the value of which at the trial was shown to be from $10 to $40. The court instructed the jury that they were bound to take the loss on the house at the appraisal. Deducting from the verdict the $275, and the interest thereon, which the jury were instructed to allow, it would leave about $80 allowed for the lean-to and the personal property. There had been an appraisal of the loss on the personal property at $42, which the plaintiff claimed was improperly obtained, and it is now suggested by the plaintiff’s counsel that the jury, in arriving at their verdict, must have taken this appraisal as correct. There was in the case a question of waiver as to the matter of the appraisal of the personal property, and the court charged the jury that the plaintiff could not recover at all on the personal property unless they found in favor of plaintiff on that subject, and, if they did so find, that then they should “ proceed to see how much this personal property was worth,” and for that purpose had the right to consider all the evidence, and should by their verdict say what the value was. We must, therefore, I think, assume that under the charge of the court the balance of the verdict over and above the §275 and interest, represents the finding of the jury of the value of the personal property and the lean-to. It will "be noticed how great a disparity there is between the value, as so found, of the personal property, and the amount stated in the proof of loss, as well as that stated in the list presented at the trial. Such a disparity has been held in some cases sufficient of itself to require the finding of fraud (Sternfeld v. Park Fire Ins. Co., 2 N. Y. Supp. 766; Wall v. Ins. Co., 51 Me. 32; Sleeper v. Ins. Co., 56 N. H. 401; Levy v. Baillie, 7 Bing. 349; 2 May Ins. § 477). It is, in effect, conceded that the list attached to the proof of loss, was a great exaggeration, but it is claimed that it was made up under the direction of the local agent of the defendant. It is not claimed that this agent had any personal knowledge of the property, but that he suggested values which the plaintiff adopted. This the agent denies, and he is corroborated by two other persons that were in his office. The agent did not make up the proof of loss, but that was prepared by an attorney, entirely disinterested, so far as it appears, and was then sworn to by plaintiff. It is difficult to see how, upon the plaintiff’s own evidence, so large an exaggeration can be honestly attributed to a mistake, or to any suggestion of the agent of defendant. This may be illustrated by a reference to one or two of the items. One item in that list was a sewing machine, $50.

The first witness for the plaintiff at the trial, being a. daughter of the plaintiff, testified that this machine was worthless; and in the list presented at the trial as representing the value of the property, nothing is claimed for it. In the proof of loss another item is, “ sixty-four yards new carpet, at $1, $64.” In the statement presented at the trial, fifty yards ingrain parlor and bedroom carpet are claimed for at 75 cents a yard, and 25 yards rag carpet at 25 cents a yard. Upon the trial, from the evidence of the wife of plaintiff, upon whom the plaintiff relied on the subject, and who assisted in making up the original list, it is very clear that no such, amount of carpet was destroyed, and whatever was destroyed had been in use for many years. The court, in substance, charged the jury that the plaintiff could not recover if he knowingly put an over valuation on any article. The jury, in effect, found he did not. Such a finding is clearly against the weight of the evidence. A careful examination of the evidence in' the appeal-book leads irresistibly to that conclusion. In such a case it is. the duty of this court to set aside the verdict (Smith v. Ins. Co., 49 N. Y. 211). We think that in this case the verdict should not be allowed to stand.

Martin, J., concurred.

Judgment and order reversed upon the law and the facts, and new trial ordered, costs to abide the event.

Note on Pleading and Proving Performance of Conditions Precedent in Actions on Insurance Policies.

1. The -usual conditions are conditions precedent.] Quinlan v. Providence Washington Ins.Co., 39 State Rep. 820; s. c., 15 N. Y. Supp. 317. Conditions in a fire insurance policy requiring immediate notice of loss, and the furnishing of proofs within sixty days are conditions precedent to the right of recovery thereon. Notice of loss served thirty-three days after the fire, and proofs seven months after, do not comply with the conditions.

2. Performance must be pleaded.] Ederly v. Farmers’ Ins. Co., 43 Iowa, 587. The furnishing of proofs of loss by insured is a condition precedent, which he must plead as well as prove.

3. General allegation sufficient.] Ferrer v. Home Mut. Ins. Co., 47 Cal. 416. Where a policy of insurance required the assured in case of loss to procure a certificate of a magistrate or notary that he has examined the circumstances attending the loss and that he believes the assured has sustained the loss without fraud, as a condition precedent to a recovery,—Held, an allegation in the complaint “ that the plaintiff performed all the conditions of said insurance respectively on his part,” is a sufficient allegation of having procured such certificate.

4. Blasingame v. Home Ins. Co., 75 Cal. 633. In an action upon a fire insurance policy, on demurrer it was objected that the complaint was insufficient, because it did not allege that notice of the loss in writing was forthwith given to the general agent of the insurance company. The complaint alleged that the fire occurred on the 9th of December and that on or about the 5th of the following February due proof of loss was presented and furnished to the company and that all the conditions of the policy were duly performed by plaintiff.—Held, a sufficient averment of the performance of conditions precedent, under the Code of Civil Procedure of California, § 457.

5. Bennett v. Maryland Fire Ins. Co., 17 Alb. L. J. 363 (U. S. Cir. Ct.). Action on a fire insurance policy. The complaint did not set out the policy, but described it sufficiently to let it be put in evidence, and alleged that the assured had duly performed all the conditions of the policy. The answer was a general denial. Held, that under the issue thus tendered, it was incumbent on plaintiff to show notice and proof of loss.

6. Schreiderer v. Travelers’ Ins. Co., 58 Wisc. 13. In an action on an accident insurance policy providing that the insured must give the insurance company notice of the accidentas provided, or the contract should be invalidated.—Held, an allegation of due performance of all conditions on the part of plaintiff a sufficient allegation of the performance of the condition as to notice.

7. River Falls Bank v. German American Ins. Co., 72 Wis. 535. A complaint alleging that by a contract of insurance the amount of any loss was to be paid after proof of loss had been made by the assured and received by the defendant, and that the assured had fully complied with all the conditions of said contract and rendered to the defendant a particular account and proof of said loss as required by said contract, sufficiently shows that proof of loss was received by defendant.

8. Forse v. Supreme Lodge K. of H., 41 Mo. App. 106. Where the petition states the terms of a life insurance policy issued by defendant and follows with an allegation of due performance of all conditions and obligations to be performed by him, such as notice of death, etc., and asks judgment for the amount stipulated, it is a sufficient pleading of the conditions precedent.

- 9. Okey v. State Ins. Co., 29 Mo. App. 105. In an action on an insurance policy containing the usual stipulations as to the duty of the assured in case of loss, an averment in the petition that plaintiff has complied with all the conditions of said policy, is sufficient under the Missouri Practice Act, to include the condition precedent, as to furnishing proofs of loss ; and under the allegation of performance, proof of a waiver of condition by defendant is admissible.

10. Commercial Union Assur. Co. v. State ex rel. Smith, 113 Ind. 331; s. c., 15 Northeast. Rep. 518. The furnishing of proof of loss by insured is a condition precedent, and its performance is sufficiently pleaded by a general allegation in the complaint that plaintiff has performed all the conditions of the contract on his part.

11. — not sufficient to show lapse of time after proofs of loss.] Doyle v. Insurance Co., 44 Cal. 264 The terms of the policy provided “ The amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss and to be paid sixty days after due notice and proof of the same made by the assured,” etc. It was objected that it did not appear from the allegations of the complaint that when the action was commenced this period of sixty days had elapsed. The complaint alleged that the plaintiff duly performed all the conditions on her part in the said policy of insurance to be performed ; that she gave to defendant due notice and proof of the fire and loss aforesaid, and demanded payment, etc.—Held, the averment of due performance, and notice was not sufficient, for a complaint filed the very next day after notice and proof of loss could -with truth contain similar allegations.

Followed in Cowan v. Phoenix Ins. Co., Cal., 28 Cent. L. 324; 20 Pacific Rep. 408.

12. Answer ; specific denial.] Voisin v. Providence-Washington Ins. Co., 16 Weekly Dig. 502. In an action on a policy of marine insurance, an allegation in the answer that “ Certain papers purporting to be proofs of loss or interest, had been presented to the defendant, but that they were not sufficient and due proofs of loss or interes t in fulfillment of the requirements of the policy,” is not sufficiently definite ; it should state in what respect the proofs of loss are claimed to be insufficient.  