Page:Federal Reporter, 1st Series, Volume 8.djvu/659

PEEBY V. PHUENIX ASSURANCE CO. j645' �believes that the plaintiffs really and by misfortune, without fraud oi-,evil practice, had sustained by said flre loss and damage to the amount named in paid certiflcate, — that is, the sura of six hundred and nineteen dollars and sev- enty-flve cents, ($619.75,) — which certiflcate is made a part of this declaration ; and the plaintiffs on the same day forwarded to the defendants, at their office at No. 54 William street, New York city, said amended and additional certifl- cate as aforesaid." �Then follows the averment that the plaintifs "have in all things- kept, fulfilled, and performed all things on their part to be kept, ful- filled, and performed under the terms of said cpntracts, or in any manner connected with their said contract of insurance." �It will be here observed that while the plaintiffs state that thej' "rendered the defendant a particular account of said loss, under their' hands and verified by their oaths, and did also declare that no other insurance was made upon said property," they do not aver that this- account stated what was the value of the property, what was the plain- tiffs interest therein, in, what general manner said barn was occupied at the time of said fire; also, were the occupants the same, and when and how the fire originated, as far as they knew or believed. And it will further be observed that while the certificate of each of the magistrates confonns in substance to moat of the requirements, yet that neither of them state that the magistrate knoivs the character and circumstances of the assured, as required by the poliey. By an almost uniform cur- rent of decisions in this country and in England, extendiug back to the first adjudicated cases upon the subject, it has been held that provisions of this character in a poliey of fire insurance are conditions precedent, the performance of which must be shown to entitle the assured to recover, By this poliey of insurance the company agrees to pay the loss only upon conditions that the plaintitis do certain things which the company deems essential for its own protection. It must appear, therefore, that each and all of these acts, as set out in the contract, have been discharged, or some legal excuse for non-per- formance given, before the plaintiffs have a right of action. Oldman y.Bewicke, 2 H. Bl. 577, note; Worsley v. Harvey, 20 Eng. Law & Eq. 541; Columbian Ins. Co. v. Lawrence, 2 Pet. 25, 50; also 10 Pet. 507; Wellcome v. People's Ins. Co. 2 Gray, 480; Campbell v. Charter Oak Ins. Co, 10 Allen, 213; Johnson v. Phœnix Ins. Co. 112 Mass. 49; Dolbier v. Agricultural Ins. Co. 67 Me. 180; Home Ins. Co. v. Duke, 43 Ind. 418 ; Doyle v. Phœnix Ins. Co. 44 Cal. 265 ; Dawes y. North River Ins. Co. 7 Cow. 462 ; Rockford Ins. Co. v. Nelson, 65 111. 415, 418; May, Ins. § 586;,Phil. Ins. § 2026. And the failure to aver performance is fatal on demurrer. ��� �