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Fayette Common Pleas.

the fact, if a fact, that Dun and such adjuster agreed upon the loss upon other of the property covered by the policy; from what the evidence shows was done and passed between said adjuster and Dun while about the matter of attempting to adjust such loss, altogether, from all these and from all circumstances disclosed by the evidence, you will determine whether or not the company waived proof of loss, the burden of proving such waiver, by a preponderance of the evidence, being upon the plaintiff. If so waived sixty days before suit brought, the plaintiff is entitled to verdict if it has otherwise made out its case. If such waiver was made within sixty days before the suit was brought, the plaintiff cannot recover, unless the plaintiff prove there was an absolute refusal by the company to pay in any event.

The policy contains a condition, providing that in case difference shall arise touching any loss, after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial appraisers, one to be selected, etc.

This is a condition that may be waived by the parties, in whole or in part. The defendant alleges that, in pursuance of said condition of the policy, the parties did select two appraisers to appraise the damage by fire to certain of the property covered by said policy, and that the appraisers made and returned such an appraisement. It further alleges, that afterwards, Dun, acting for the plaintiff, and one J. B. Hall, an adjuster, acting for defendant, not being able to agree upon the amount of damages to the other property, thereupon the defendant demanded an appraisement of said loss under said policy in the manner provided for in said condition; but that Dun, for the plaintiff, refused to enter into the same, and that it has not been able to get such an appraisement.

Neither party is entitled to demand and have more than one appraisement under said condition; if once demanded and appraisement had, neither can under this clause demand and have a second appraisement of the same. If only an appraisement of a part of the loss is called for under this clause, and both parties understood at this time that the appraisement demanded and made was only an exercise in part of the right given in this said condition, to say the least, neither party can again demand a reappraisement of the part so appraised.

It is a privilege, too, that should be exercised within a reasonable time after the right to demand it arises. Neither party can be required to wait indefinitely the pleasure of the other in the matter of demanding such an appraisement. The insured could not be required to wait unnecessarily and hold the property in the condition it was left by the fire; serious expense and loss might result thereby to him.

If the only written demand, after the partial appraisement had, mentioned, was the letter offered in evidence, dated July 23, 1889, the defendant was not entitled to such an appraisement.

Dun & Co. v. Insurance Co.

There being no evidence to prove any other written request, you are instructed to find against the defendant on the third defense, and in favor of the plaintiff upon the issue as to it.

The following special instruction, agreed upon by counsel, is re. quested, to-wit:

As to the property covered by the policy of insurance that was saved in a damaged condition and submitted to appraisers by the parties, the amount of damage assessed by the appraisers and returned by them as their award was $1,347.85."

If you find it necessary to inquire into the amount of damages sustained by the fire, then I charge you that as to that part of the property which was submitted to the appraisers, the damages fixed by the appraisers and returned in their award is conclusive, as to the amount.

Also special instruction No. 2 asked by defendant is given as requested and excepted to by plaintiff :

"That the papers show that this action was begun by the filing of the petition on June 22, 1889, the waiver, if any, must have been made at least sixty days before that time, to enable the plaintiff to recover, unless an absolute refusal to pay in any event had been made by the defendant."

Also special instruction asked by plaintiff :

"In determining whether the sixty days had elapsed before the action was commenced, you are not necessarily to be governed by the date when negotiations ceased between the parties in reference to the loss, but will determine from all the facts and circumstances in evidence the time when, if ever, the company waived said proofs of loss."

If under the instructions you find for the defendant, you will return a verdict finding, upon the issues, in favor of the defendant. If you find for the plaintiff, you will return a verdict finding, upon the issues, in favor of the plaintiff, and award it damages in the amount you find from the evidence was the loss upon the property described in the policy caused by such fire, and 'the amount of loss or damages to be estimated according to the actual cash value of the property at the time of the loss with interest from the time it should have been paid; but you will understand that you must keep in mind and be governed in fixing the amount by the special instruction above given.

In no event can the amount of damage awarded exceed $3,500 on that part of the property designated as stock; exceed $400 on soda fountain and fixtures inventoried; or exceed $1,100 on the furniture and fixtures mentioned.

And the defendant then on the trial excepted to said charge, as a whole, and to all the several parts of the said charges marked on the margin thereof excepted to. And the defendant excepted to the special charge and instructions asked for by the plaintiffs.

Fayette Common Pleas.

The defendant asked the court to charge the jury, as follows:

"In order to effect a dissolution of a partnership it is not necessary that there be a formal dissolution of the firm, agreed upon between the partners. It is sufficient if they have separated with the intention of giving up and discontinuing their relations to each other as partners. You will, therefore, in this case consider all the testimony that has been offered in relation to this partnership in connection with the conduct of the members of the partnership toward each other, to determine whether the firm of Dun & Company at the time of bringing this action was a firm doing business in the state of Ohio."

But the court refused to give said instructions, to which refusal to so instruct the jury the defendant then excepted.

The defendant further asked the court to charge and instruct the jury as follows:

"If the firm of Dun & Company was not dissolved at the time Dun purchased the stock of drugs, etc., at sheriff's sale, and was a firm organized only to do a banking business in Sabina, Ohio, and Creighton had gone away, leaving his partner to conduct and carry on that business in his absence, then Dun would have had no right to have purchased this stock of goods in the name of Dun & Company, and gone into this new business in that name without the knowledge and consent of Creighton; and if he did so, and Creighton did not consent to it at the time or subsequently, then the purchase did not bind the firm of Dun & Company, and Dun & Company did not by such purchase become the owner of said stock, and it was a misrepresentation for Dun & Company to take out the policy of insurance in the name of Dun & Company, and under that provision of the policy requiring the assured to make known the ownership, the policy would be void and the company not liable."

The court refused to give to the jury said charge and instruction, to which refusal the defendant then excepted.

The defendant further asked the court to charge and instruct the jury as follows:

"That the submission of the question of damages as to the property saved in a damaged condition by Hall and Dun, was not a waiver of the right of the defendant subsequently to demand proofs of loss."

But the court refused to give the said charge and instruction to the jury, to which refusal the defendant then excepted.

Sibley v. Ross.

LANDLORD AND TENANT.

[Superior Court of Cincinnati, Special Term, 1890.]

*JAS. W. SIBLEY ET AL. V. SIMON Ross ET AL. 1. VIOLATION or LEASE-RENT-DAMAGES,

Where the lessors of a building under contract to repair its walls negli

gently or perversely refuse to perform the obligations of the contract, they not only can recover no rent but would be liable to the lessees for

damages sustained by breach of the contract. 2. RENT OF INSECURE BUILDING-LESSEE LIABLE, WHEN.

Under a lease, of a building to be used for operating heavy machinery,

wherein it is provided that lessors shall keep the walls (which, when the lease was made and to the knowledge of both parties, were bolted together), in repair and it appears that, upon being notified and finding that the walls were insecire, lessees were ready and willing to repair them, even to the extent of rebuilding, but were prevented from carrying out plans, prepared by an architect, for doing so, by lessees, in the first instance, claiming that the plans were insufficient, and then prevented from making repairs by the city, such lessees are liable for the stipulated rent during the time they retained possession of the building, notwithstanding the fact that it was insecure and untenantable.

This action was brought by James W. Sibley and wife against Simon Ross, Jr., and others for three months' rent at the rate of $250 per month, of premises located upon Sycamore street, in the city of Cincinnati, occupied under a written lease between the parties, by which Ross and partners agreed to pay such rental to Sibley and wife during their tenancy The answer of the defendants admits the execution of the lease, the agreement to pay rent, and sets up a covenant contained in the lease, that Sibley and wife should keep all roofs of the premises in repair, and also, if the walls of the building should be insecure, to place them in good repair.

The answer also avers that the plaintiffs knew at the time of the execution of the lease, the character and kind of business that the defendants proposed to carry on upon said premises, and that the covenant to keep in repair all walls of the buildings was inserted in the lease with full knowledge upon the part of Sibley and wife, of the purpose for which the buildings were to be used by the lessees. The answer also charges that Sibley and wife have not kept this agreement, and that having failed to do so, the lessees are not liable for any of the rent.

*The judgment in this case was affirmed by general term, January term, and by the Supreme Court, 52 Ohio St., 668, unreported.

*In the Supreme Court. Chas. W. Baker, for plaintiff in error, cited: Huston v. Railroad Co., 21 Ohio St., 235; Wolf v. Arnott, 109 Pa. St., 473; Kinkaid v. Britton, 5 Snead, Tenn., 130; Williams v. Healey, 3 Denio, 363; Bur. rows v. Clarey, 53 Ill., 30; Williams v. Healey, 3 Denio, 363; Sec. 4113, Rev. Stat.

*Ramsey, Maxwell and Ramsey, and Lawrence Maxwell, Jr., for defendant in error, cited: Hart v. Windsor, 12 M. & W., 68; Dutton v. Gerrish, 9 Cush., 89; Sutton v. Temple, 12 M. & W., 52; Krueger v. Fanaudt, 29 Minn., 385; Suydam 7. Jackson, 54 N. Y., 450; Hilliard v. Gas Coal Co., 41 Ohio St., 662, 669; Johnson v. Oppenheim, 55 N. 1., 280.

Superior Court of Cincinnati

comply with his contract, was not ready to do it and willing to do it and able to do it, then not only can he recover no rent, but the defendant is entitled to recover damages on his answer and cross-petition, for whatever damages he sustained.

Mr. Baker: "There is one point. I would like your honor to charge that if by reason of anything, without the fault of either of these parties, these premises become untenantable, or a portion of them become untenantable, the defendant is not liable."

The Court: "This is not a case of lightning striking them and knocking them all to pieces, or an earthquake dashing them down, or a fire burning them down'; it is a case of ordinary decay, long continued, which must have been observed by the parties, and I think I have charged the jury sufficiently so that every one of them understands what I mean, and if I did not, they will retire to the jury room and find out.”

Gentlemen, you will retire to the jury room now and consider your verdict.

Mr. Baker: "Allow me to reserve an exception to the last part and to your honor's refusal to give what I asked."

The Court: "Let me hear that again ?"

Mr. Baker: "I asked your honor to charge that if without fault of either of these parties the building became untenantable, my client is not to be chargeable with the expense of the damage."

Which charge the court refused to give. To which refusal the defendant, by his counsel, then and there excepted.

Mr. Ramsey: "Your honor might tell the jury there is no dispute about the amount, $250 a month."

The Court: “Oh, Gentlemen, there are three forms of verdict prepared for you.”

We the jury on the issue joined find for plaintiffs and assess their damages at

dollars.
We the jury on the issue joind find for the defendants.

We the jury on the issue joined find for the defendants. their damages at

dollars. Mr. Baker: "With your honor's permission I will take a general exception to the charge.

"'I except to the part of the charge where your honor instructs the jury that if Sibley was ready and willing to do anything he could, and if he was ready and willing to repair the wall, or if he did not repair the wall he was perfectly willing to tear it down and build it up again; that even if the building had become untenantable, yet, nevertheless, his willingness is sufficient to charge Ross, Moyer & Co. with the rent; as long as he was ready and willing to do it he can sit down and not do it.

“And to that part of the charge that Ross, Moyer & Co, are to pay the rent if there was such willingness upon the part of Sibley.

no.

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