Baker v. Phœnix Assurance Co.

Smith, P. J.

— This is an action on a fire insurance policy. It is rather difficult to determine from the .petition, which is too lengthy to be here set forth, whether the plaintiff intended to state a cause of action at- law or in equity. It sets forth the policy according to its legal effect, states the property covered by it was totally destroyed by fire; that notice of the loss was given followed by proofs thereof as required by the policy, etc. There is a prayer for judgment for the amount of the policy.

There are also inserted in the petition several allegations to the effect that after the fire the plaintiff and the defendant in pursuance of the policy entered into an agreement in writing for the appointment of arbitrators “to estimate and appraise” the damages the plaintiff had sustained by reason of the fire. It is further charged that the arbitrators were appointed under said agreement, but that they did not act fairly and impartially, and that their estimate and appraisement was fraudulent. There is also a prayer to have the action of the arbitrators set aside, etc.

There was a trial before the court where evidence was adduced by the plaintiff tending to show a total loss of the property covered by the policy. There also was some evidence offered to prove the allegations of his petition, other than those in respect to the fraud in the action of the "arbitrators in making the award, to which. defendant objected, on the ground that the plaintiff could not recover on the policy until the award should be set aside, and which objections were by the court sustained.

The plaintiff introduced some evidence to sustain the charge of fraud alleged in his petition. At the close of the evidence on this branch of his case, the defendant interposed a demurrer thereto, which was *563 also sustained by the court and judgment given for defendant.

It seems to us from an examination of the evidence that it was insufficient to sustain the charge of fraud preferred against the arbitrators. Now, if it be conceded that the charge of fraud was unproven, still was not the plaintiff entitled to prove, if he could, the allegations of defendant’s liability on the policy, notwithstanding there was no evidence to justify the disturbance of the award? "We think so. The statute provides that when property covered by a policy of insurance shall be wholly destroyed the amount written in the policy shall be taken conclusively to be the true value of the property when insured and the true amount of the loss and the measure of damages when destroyed. R. S., sec. 5897. And so it has been ruled that even though there should be other means provided in a policy for ascertaining the amount of the loss and damage, when the destruction of the property is total, the statute will be given controlling effect even though it should subvert the provisions of the policy in this respect. Barnard v. Insurance Co., 38 Mo. App. 106 , and cases there cited. A different rule is provided in section 5898 on cases of partial loss. The statute is exclusive in prescribing the measure of the loss and damage the assured is entitled to recover under the policy in such case.

The agreement therefore entered into by the plaintiff to arbitrate a matter which the statute itself had determined and fixed the very instant the total destruction of the property covered by the policy took place, was nudum pactum — having no consideration for its support. There was no benefit or advantage flowing to plaintiff or harm or disadvantage to defendant on account of entering into the agreement. It was a mere gratuity as far as plaintiff was concerned and *564 bound no one.

A court of equity will not carry into execution nor abrogate such an agreement. Story’s Eq. Juris., sec. 787. The agreement and the acts of the arbitrators done under its provisions being manifestly void there was nothing fora court of equity to do. Ohnsorg v. Turner, 13 Mo. App. 533 ; Holland v. Johnson, 80 Mo. 34 . The allegations of the petition, therefore, in respect to the fraud, were ‘‘useless cumberers of the ground” — mere surplusage. They should have been stricken from the petition, or else no evidence received in their support.

After discarding such surplusage, the allegations remaining sufficiently stated a cause of action at law on the policy. The trial court erred in its action refusing to permit plaintiff to adduce evidence tending to prove such allegations. But it committed no error in setting aside its finding and judgment and granting a new trial of the cause.

The plaintiff was entitled to a trial of the issues made by the pleadings which the court through inadvertence had denied him, so that -it results that its order to that end must be affirmed.

All concur.