The Montgomery advertiser., 1903-09-05
HeAd-Notes Of the Decisions
 Of Alabama Supreme Court.

BUTTER & HENDRIX v. HANOVER FIRE INSURANCE COMPANY. Action on Fire Insurance Policy.-Appeal from the Circuit Court of Montgom- ery.-Tried before Hon. J. c. Rich. ardson.
 1. Action on fire insurance policy; suf- ficiency of plea.-In an action upon fire insurance policy a plea of the defendant which ayers that in accordance with the provisions of the policy sued on, the plaintiff and the defendant. being unable to agree upon the amount of the loss sus- tafned, entered into a written agreement. submitting the entertainment of the loss to arbitra ton; that the arbitrators made an award: that after said award. the de- fendant rendered to the plaintiff the amount of loss fixed by said award. which amount, so rendered. Is averred to have been brought into court. and that 1t was expressly stipulated and agreed and made a material part of the policy sued on. that no action could be maintained thereon, until after full compliance by the plaintiff with all the requirements of said policy, and that, therefore, the plain | tiff could only recover the amount so ten dered by the defendant and paid Into | court. Is a good plea. and not subject to demurrer.
 9. Action upon fire insurance policy: admissibility of evidence.-In an action upon a fire insurance policy. where the defendant, by special pleas, set up that | in accordance with the stipulation con- tained in the policy sued upon, the plain | tin and the defendant, being unable to agree upon the amount of the damage sustained. submitted the ascertainment of said amount to arbitration. and that sun- der said arbitration, an award was made which amount so ascertained to be due | was rendered plaintiff by the defendant.
 and the plaintiff. by replication. sets up | a modification of the agreement of sub mission to arbitration. by which 1t was
 agreed that the arbitrators were to as-
 certain the loss or damage only to the
 property which was partially destroyed,
 it Is permissible for the plaintiff to show that the modification alleged was by a verbal agreement entered into by the | parties after the execution of the written agreement for arbitration. but the testl-
 mony as to the statements of the parties
 made prior to and at the time of enter
 ing into the written agreement of sub
 mission to arbitration, Is fnadmissible in | evidence.
 3. Rescission of contract; what repre-
 sentations sufficient therefor.-A misrep-
 resentation of a material fact or thing
 directly relating to the subject matter of a
 contract, on which the acting party relies, and has right to rely. inducing him to
 enter into the contract, Is, in law, a
 fraud. whether made willfully and inten- | tionally, or innocently, through ignor- ance, inadvertence or mistake, and gives
 such party & right to rescind the con- tract 1t may have induced; but misrepre-
 sentation of a matter of law or a matter
 of judgment, or the expression of an opinion in reference to a matter equally
 open to the observation or inquiry of
 both parties, is not a fraud, and In the absence of the relation of trust and con- fidence between the parties, or of some
 other peculiar fact or circumstance, does
 not vitiate the contract or furnish a ground for its rescission.
 4. Action upon fire insurance policy; | sufficiency of replication.-In an action
 upon a fire insurance policy, where a de-
 fendant sets up. by special plea. that.
 in accordance with the stipulation con-
 tained in the policy sued on, the plaintiff | and defendant. being unable to agree | upon the damage sustained, submitted the
 ascertainment of such damage to arbi-
 tration. that there was an award made,
 and that the amount of damage ascer
 tained was rendered by the defendant to
 the plaintiff, replication by the plain tiff which sets up that the agreement of submission to arbitration called for the appraisal of the property totally destroy ed. as well as that partially injured, but
 that the award which was made only ap-
 praised the goods which were partially destroyed, and was, therefore, a failure
 on the part of the arbitrators to carry
 out the agreement of submission to arbi-
 tration. presents an answer to the de. fendant's plea and is not subject to de. mutrer; since an award which does not conform to the arbitration agreement Is
 not binding on the parties to such agree. ment.
 Reversed and remanded.
 | Opinion by Dowdall l.