The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-06-18

admitted 1t, but relied on the bond-thc
precedent. Reversing the court
below, the court held that by its conduct
in the matter OF proceeding under the ar
clause the company had forfeited
that defense in q court OF law.
Now, here while these policies plainly
in their phraseology as l have shown,
with one exception, and II not, under the
law as the companies should have known
it. limited the arbitration TO the bare APP
praisemcnt OF the cash value OF the
burned goods, the defendants persist
emily refused to sign q stipulation so
limiting the arbitration. Can there be any
doubt OF that fact on the written cores
pondence? The plaintiffs offered to 80
appraise tho undisputed goods and sep
arately the disputed goods. 1t is true
they attached an unreasonable condition
TO that oiler, that tho undisputed values
should be paid, but 1t is plain enough
that the companies
would not limit the arbitration reasonably,
rs they might have done or offered TO do.
They refused to specify the particulars Of
the arbitration and only referred to their
contracts espectively-always that and
nothing more. Now the language was
elastic and liable TO misinterpretation and
the plaintiff had u right TO ask for par
ticular stipulation and to have II specifi-
cally refused or accepted. The arbitration
is not self-oxecuting, and both sides adj
nit tho necessity for a stipulation as to
what Is to be referred, and the plaintiff
had right 10 limit II TO its precise legal
function and to stipulato that il should
not go beyond that The printed form OF
arbitration offered in proof by the defend
ants takes advantage OF the general Ian
guage OF the clauses, and Is not specific in
its limitations in that regard. Moreover,
the negotiations, rs disclosed in tho corre-
Spondence, showed reasonable contro-
versy about that which should 90 before
the arbitrators, which it was unreasonable
in the companies to ignore in drawing up
stipulation. They did not treat
the plaintiff reasonably about these
negotiations, but doggedly relied only on
the too general, somewhat ambiguous and
altogether insufficient language OF the
policies, which confesscdly required 10 DO
supplemented by an agrcementas 10 what
was TO be specifically submitted. They
refused to indicate their wishes as 10 de-
tails, and. under tho circumstances, they
refused to arbitrate except in the general
way that would give the arbitrator more
freedom OF decision than the plaintiff
properly was willing TO give. This con-
duct forfeited the right OF arbitration rs
thoroughly as II they had refused to arbitrate
az all. The arbitration has failed because
the parties could not agree on It's terms, and
the fault il, under the circumstances, with
the defendants and not with the plaintiff.
The validity Of these arbitration clauses ~
TO be decided not alone by the bare words
of the policies, but also by the practical
construction put upon them by the COM
panics In the particular case. Here, as
they have been interpreted by this corre-
spOndence, they are beyond the limitations
prescribed by the public policy OF the law
aud do entrench upon the liberty and
dominion OF the courts" Whether the
policies covered tho cartoons" or jackets
for the bottles, or other disputed items,
claimed to be merchandise, under proper
construction OF that term, or whether the
proper measure OF damages or value Tor the
compounded medicines should be the cash
market value of the compounded articles,
or only the cost OF reproduction 10 the ~.
surcd. could not be submitted 10 the arbi-
traitors, aud the companies should have
been willing 20 10 have drawn the articles
OF submission, but they were not, plainly.
They all united together, and while elaine
ing only the terms Of the contract one OF
the policies, at least. In plain terms went
beyond the limitations laid. and the Others
might have been 80 used 90 that end un-
less the arbitration should be properly linn
tied by previous agreement. Not being
willing TO DO this, that unwillingnoss alone
forfeited the condition.
PROOFS or loss.
Exercising tho same power as before,
where tho facts. are undisputcd aud the
differences Of fact inevitable, rs in this case
they are, | do not hesitate TO tell YOU
that the companies have also abandoned
or waived the condition requiring pre-.
limnary proofs OF loss, and these suits arc
not promaturely brought for want oil
them. Not alone by seeking 10 adjust the
loss en- their own account, has this been
done. perhaps. But the particular account
in detail required by this condition OF IN,
policy could have been only the plaintiff Z
sworn estimate Of tho value of each article
10 be asccrtained by them as they nigh
choose 10 ascertain Il, with such informa
ton ~ 20 inventories aud cost prices d
the clauses in tho policies may call for IL
each case. Now, when the adjusior
came here, associated themsolye
together, called for tho inventories
invoices, books and documents
ETC., received them at their hotel, heard
all the statements 10 DO made by th
plaintiff concerning the loss, and thei
proceeded 20 inspect the books, invoices
inventories, etc, aud. after taking thei
time. submitted the letter OF March :
aud their own statement Of the result
fixing the sum they wcc willing 20 pay
and all this without any demand OK
pressed TO the plaintiff for these forms
aud preliminary proofs this was clcarl
waiver of them, under even th
most favorable eases they have cite
against the waiver. Why should sue
particulars bo furnished when they wcr
already before the adjustou. or VIII
should they ask Tor Thorn under the cir
cumstances2 They did not need thor
and they did not ask for them, aud IN
plaintiff might well suppose they wei
not wanted. The defense IL an aitcl
I thought, aud surely not tcnablc undo
any Of the cases on the subject.
MEASURE oG DAMAGES.
I II only remains 10 say 30 you that no
, your duty arises 10 ascertain the fair cas-
, value OF the goods destroyed at tho tim
= OF the fire aud 10 lix by that value a. yo
= ind II from the proof the amount Of III
loss. You nccd not cturn In detail |
! yorr verdict the value Of zach article bl
; only the aggregate sum NJ you find n.
! you find that the loss was equal 10 the a.
I. grcgnto Insurance OF $50, 800 YOU ma
= simply say that YOU hnd Tor the plaintiff
1 loss fully equal 10 tho sum insured an