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Assur. Co., 86 Mo. App. 596; Quarrier v. Peabody Ins. Co., 10 W. Va. 507; Fournier v. German-American Ins. Co., 23 R. I. 36, 49 Atl. Rep. 98; Smith v. Glens Falls Ins. Co., 62 N. Y. 85; Concordia Ins. Co. v. Koretz, 14 Colo. 386, 60 Pac. Rep. 191; Illinois Ins. Co. v. Archdeacon, 82 Ill. 236; Godchaux v. Merchant Ins. Co., 34 La. Ann. 235; Wagner v. Dwelling-House Ins. Co., 143 Pa. St. 338, 22 Atl. Rep. 885; Home Ins. Co. v. Howard, 111 Ind. 544, 13 N. E. Rep. 103. And see Vining v. Franklin Ins. Co., 89 Mo. App. 311.
2. Grier v. Northern Assur. Co., supra.
3. Flannery v. State Mut. Ins. Co., 175 Pa. St. 387, 34 Atl. Rep. 798; Millers' National Ins. Co. v. Kinneard, 136 Ill. 199, 26 N. E. Rep. 368; O'Leary v. German-American Ins. Co., 100 Iowa, 390, 69 N. W. Rep. 686, 27 Ins. L. J. 510. And see Dobson v. Hartford Ins. Co., 86 App. Div. 115, 83 N. Y. Supp. 456; Barry & Finan Lumber Co. v. Citizens' Ins. Co., Mich. 98 N. W. Rep. 761; Parker v. Farmers' Ins. Co., Mass. 74 N. E. Rep. 286.
4. Stockton Combined H. & A. Works v. American Ins. Co., 121 Cal. 182, 53 Pac. Rep. 573, 27 Ins. L. J. 1001.
5. Melcher v. Insurance Co., Me. 55 Atl. Rep. 411.
RULE 8. Effect of Adjustment and Performance Fraud or Misrepre
sentation. Adjustments and settlements between the assured and insurance company, when fully performed, have all the elements and properties of a contract, and, in the absence of fraud, are as incapable of rescission as any other contract; a misrepresentation 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 and depending upon the construction of the policy, the terms of which are presumed to be known to the insured, does not constitute a fraud; otherwise where the adjuster makes use of any misrepresentation, deception, artifice, trick, or contrivance to prevent the assured from ascertaining his rights under the policy;2 or is guilty of a misrepresentation of fact.3
1. Georgia Home Ins. Co. v. Warten, 113 Ala. 479, 22 So. Rep. 288; Mayhew v. Phænix Ins. Co., 23 Mich. 105; Ætna Ins. Co. v. Reed, 33 Ohio St. 283; Nebraska Ins. Co. v. Segard, 29 Nebr. 354, 45 N. W. Rep. 681; Thompson v. Phænix Ins. Co., 75 Me. 55; American Ins. Co. v. Crawford, 7 Ill. App. 29; Phænix Ins. Co. v. Van Allen, 29 Ill. App. 149; Saville v. Ætna Ins. Co., 8 Mont. 419, 20 Pac. Rep. 646; King v. Ætna Ins. Co., 36 Mo. App. 128; Rome Grocery Co. v. Greenwich Ins. Co., 110 Ga. 618; Ordway v. Continental Ins. Co., 35 Mo. App. 426; McLean v. American Ins. Co., Iowa, 98 N. W. Rep. 227; German Ins. Co. v. Seibert, 24 Ind. App. 279, 56 N. E. Rep. 686. And see “ Construction."
2. Howard v. Georgia Home Ins. Co., 102 Ga. 137, 29 S. E. Rep. 143; Davis v. Phænix Ins. Co., 81 Mo. App. 264; Berry v. American Central Ins. Co., 132 N. Y. 49, 30 N. E. Rep. 254.
3. Burnham v. Lamar Ins. Co., 79 Ill. 160.
Effect of Receipt in Full.
A receipt in full of all demands, including statement that policy is surrendered and canceled, is not conclusive upon the assured, who may subsequently show
, by parol evidence that a part of his claim was not intended to be thereby covered and included, otherwise where the receipt embodies a contract.
Fire Ins. Assoc. v. Wickham, 141 U. S. 564. And see Redfield v. Holland Purchase Ins. Co., 56 N. Y. 354.
Settlement With Assignee Holding Policy as Security.
When policy is assigned or held by an assignee as collateral security for debt of the assured, a settlement with such assignee does not preclude the assured from claiming balance due under the policy from the insurance company.
Clark v. German Ins. Co., 84 Mo. App. 243.
When Agreement to Take Less Than Due Enforceable.
An agreement to take less than the ascertained amount of liability is not enforceable unless additional security is given, or there is some new consideration.
American Central Ins. Co. v. Sweetser, 116 Ind. 370.
Adjustment and Promise to Pay as Estoppel.
Where the assured acts upon an adjustment and the adjuster's promise to pay, in settling with other companies upon the basis of the adjustment, it operates as an estoppel preventing the company from denying liability.
Fishbeck v. Phænix Ins. Co., 54 Cal. 422.
Effect of Offer in Compromise.
An offer to compromise by an agent or adjuster of the insurance company is not binding as an admission of liability or estoppel," but may be evidence of waiver of time in furnishing of proofs. It is always advisable to state that such offer is made without prejudice.
1. Hanover Ins. Co. v. Stoddart, 52 Nebr. 745, 73 N. W. Rep. 291; Hill v. Commercial Union Assur. Co., 164 Mass. 406, 41 N. E. Rep. 657; Richards v. Continental Ins. Co., 83 Mich. 508. 47 N. W. Rep. 350 ; Home Ins. Co. v. Baltimore Warehouse Co., 3 Otto (U. S.), 527; American Ins. Co. v. Walston, 111 Ill. App. 133.
2. Gould v. Dwelling-House Ins. Co., 134 Pa. St. 570.
Ignorance and Misrepresentation as to Law
Mistake of Fact.
In equity, ignorance of the law and misrepresentations as to the law may be in some cases elements, in connection with other circumstances of relievable fraud or mistake, and so a settlement may be opened on ground of a mistake of fact, where one party has acted in ignorance, and it would be in effect a fraud to permit the other to have benefit of it, and this operates in favor of an insurance company as well as against it.3
1. Titus v. Rochester German Ins. Co., 97 Ky. 567, 31 S. W. Rep. 127; Sanford v. Royal Ins. Co., 11 Wash. 653, 40 Pac. Rep. 609; Berry v. American Central Ins. Co., 132 N. Y. 49, 30 N. E. Rep. 254.
2. Belt v. American Central Ins. Co., 148 N. Y. 624, 43 N. E. Rep. 64, revg. 74 Hun, 448, 26 N. Y. Supp. 692; Remington v. Westchester Ins. Co., 14 R. I. 245.
3. Columbus Ins. Co. v. Walsh, 18 Mo. 229; Phænix Ins. Co. v. Parsons, 129 N. Y. 86, 29 N. E. Rep. 87; Mutual Ins. Co. v. Wager, 27 Barb. 354; American Ins. Co. v. Barnett, 73 Mo. 364; Fire Assoc. v. Blum, 63 Tex. 282.
Not Essential in Equity to Return or Tender Amount Received.
Where it is sought by assured in a suit in equity to set aside a settlement and release and to recover the full amount due under the contract of insurance, on ground of fraudulent representations of the company's agent, it is not essential to first repay or tender the amount received in settlement; it is sufficient to make the tender in the complaint or on the trial and ask that the amount be credited or allowed to the company." The rule is otherwise in an action at law on the policy;2 but assured is not obliged to return a draft received in settlement upon repudiation by the company, before proceeding in action on the policy.3
1. Reynolds v. Westchester Ins. Co., 8 App. Div. 193, 40 N. Y. Supp. 336; Berry v. American Central Ins. Co., 132 N. Y. 49, 30 N. E. Rep. 254.
2. Harkey v. Mechanics & Traders’ Ins. Co., 62 Ark. 274, 35 S. W. Rep. 230; Potter v. Monmouth Ins. Co., 63 Me. 440; Brown v. Hartford Ins. Co., 117 Mass. 479; Home Ins. Co. v. McRichards, 121 Ind. 121, 22 N. E. Rep. 875; Pangborn v. Continental Ins. Co., 67 Mich. 683; Home Ins. Co. v. Howard. 111 Ind. 544, 13 N. E. Rep. 103; Norwich Union Ins. Co. v. Girton, 124 Ind. 217, 24 N. E. Rep. 984; Riggs v. Home Fire Assoc., 61 S. C. 448, 39 S. E. Rep. 614. But see Sanford v. Royal Ins. Co., 11 Wash. 653, 40 Pac. Rep. 609.
3. Insurance Co. of N. A. v. Osborn, 26 Ind. App. 88, 59 N. E. Rep. 181.
Effect of Duress.
Where the assured is compelled by duress of imprisonment or threats of imprisonment under a charge of arson to accept a sum less than what is due, in order to maintain an action on the policy it is not necessary to return or tender the money received.
Springfield F. & M. Ins. Co. v. Hull, 51 Ohio St. 270, 37 N. E. Rep. 1116; Hartford Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 So. Rep. 651.
Not Necessarily Fraud for Company to Make Indorsement Upon
Policy After Fire. Fraud in settlement cannot be predicated upon action of the insurance company in adding indorsement to policy in its possession after the fire, when same constitutes a mere formal authentication of the contract