Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-06-26


equired to mature the liability Of the endors-
r, demand upon the endorser was necessary,
nd there being none, the order appealed from
S affirmed. GILFILLAN, q. >.
William Fl. N,tdtl, James B. Rose, f.. X. SnaiM,
co-portuers, as W. II. Nuda & Cos, Appelants,
rs. The Home INSURANCE and Banking com.
pa,ay Of Teas, Respondent.
This is an appeal from an order granting a /
Neutral, chiefly the ground of surprise. The
application was made and heard upon afidavits, |
and upon the reporters minutes OF the trial, |
which the parties by stipulation agreed might |
be treated as a settled case, for the purpose of
the motion. No objection appears to have
been taken IN the court below to the suficiency
Of the notice Of motion, nor to any of the afi-
davits or papers which were used at the hear
ing. If any valid objection of this kind exist
ed, it should have been seasonably presented in
that court None such having been then raised
none can be permitted to be here for the first
time inteSpdsed.
The action was brought upon policy of in
surance to recover the amount Of a loss by fire
happening on the LIST day of August, 1876.
The policy contained stipulations requiring
the insured in case Of loss fhers by fire re
the company; and also as soon
thereafter as possible to render particular ac-
count Of such loss signed and sworn TO by
them and'' it appears that it was issued and
accepted in reference and subject to these
among other conditions. The material question
put in issue by the pleadings for litigation re-
lated to the performance Of the conditions of
the policy by the plaintiffs, full compliance
Herewith being averred generally in the COM
plant and denied in the answer; and this was
the only issue that was thus raised or rendered
in respect to these conditions:
On the trial Charles Allen, the attorney of
plaintiffs, was sworn and gave testi-
mony as witness in their behalf
against the objection of the defendant but
with the permission of the COURT he testified
to having sent, as such, their attorney, by
mail, to the home Office of the defendant COM
pany, in Galveston, Texas, on the 26th day of
! January; 4. D. 1875, five months and twenty
six days after the fire, a verified account and
statement of their loss. That prior to mailing
these proofs, he had been in correspondence
with the company, and had sent and received
in reply one or two letters, which he had lost
and was unable to find. In stating the con-
tents of the first of these letters, which he re-
| ceived, as he says, about the middle
of January, 1876 he testified
| that the company therein expressed its regret
| that it had not been sooner notified of the loss
at the home office, and requested said Allen to
make out and send on proofs of the loss, and
| that it would have the matter inquired into
and "honorably adjusted, fairly adjusted, y or
something of that kind, and that the proofs
were forwarded by him, in pursuance of such
was shown to the satisfaction of the court. and,
| in our opinion, upon abundant testimony; that
no letter of the purport as thus testified to
was ever written or sent to the said
witness, Allen, either from the
home Office Of the defendant company
States, wherein the State of Minnesota was In
cluded, that only one letter was ever addressed
to him from the Home office, sworn copy o.
which had been procured therefrom since thu
trial and was produced at the hearing. THAI
this letter, bearing date December 80, 1876, in
sion that could be construed into either an ad
mission that any of the conditions of the poll
cy as to notice of loss and proofs had beer
| complied with, or any intimation prohis
| that com pliance Herewith then OF there
, after would be regarded and treated as with
in the required time, or that the company woul
waive strict performance in that regard, in es
press terms notified the said Allen, that tn
, company had never received any proofs of loss
nor any information of a loss, within the tim
prescribed by the conditions of the policy
and that it did not intend to waive any of it
rights in the premises. 1t was also shown b
the affidavit of defendants attorneys and cou1
sci, who tried the case, that he had at that tim
no knowledge or information concerning thi
letter or it's contents, or the truth or falsity
the said testimony of said Allen, an
( means of ascertaining the facts
respect thereto except by communicate
: with the home Office of his client, located in
: distant State, and that he was therefore take
8 wholly by surprise by the character of sue
! disprove it by showing the real truth of Il
: matter. Upon these facts taken in connectio
! with the trial as disclosed by the record befo
: U.S. the question is presented whether the q
i cision of the trial court setting aside the We
, dict against the defendant and awar
, this testimony Of witness Allen, which
the subject of complaint, the verdict UNIQUE
tionably would not have been rendered, or
it had, it must have been set aside as unsu
v ported by evidence. Upon the record befo
us, and for the purpose of determining d
question under consideration, t.
0 untruthfulness of this testimo1
n must be assumed as well as the facts that d
e PENDANT was wholly unprepared at the tri
with any evidence to disprove it, and thai
counsel who tried the case was at the time
utter ignorance Of the existence ofany eviden
) fby which its falsity could be shown. This wa
: of preparation cannot, under the circumstanc,
IL be attributed to the defendant or it's attorn
le and counsel as any negligence or want of di
'. gence. From no issue or allegation in t
d pleadings could have been it reasonably a
/, ticipated or expected that the contents of a
letter of the purport SO testified to, would
come material subject of inquiry on the tri
No question of waiver of the performance
any of the conditions or stipulations of
u policy was made or raised by the pleading
70 and hence there was no necessity nor proprie
in being prepared with any preparati
q to meet such an issue. I
y, only issue made to which
4 nency, was that taken upon compliance wi
~ anch conditiOnR. and it ia hardly reasonable