csossnsy v. oouuscricur mss ms. co. 31
not consist in any part of the award of referees appointed under the
provisions of the clause last quoted. To the introduction of evidence
so offered the defendants will object on_the ground that the agree-
° ment for reference contained in the policy is to be construed to make
the award of referees a condition precedent to any proof of amount
of loss, or to make it the sole evidence as to such amount. When the
testimony shall be closed, the defendants will pray a ruling that the
verdict shall be for the defendants on the ground that the eliect of
the agreement for reference is to make such a reference a condition
precedent to the right of the insured to recover.
Upon these two motions a vital question will be whether the agree-
ment for reference is, on the one hand, a collateral contract, or, on
the other hand, is expressly or by implication a condition precedent
to recovery or to any proof of the amount of the loss. Upon exam-
ination of authorities, I am of opinion that the agreement is a collat-
eral contract only. The questions which I have stated, as well as
several other questions which in different views of the case might be
material, have been argued very fully, and with great skill and learn- U
ing, and abundant citation of authorities; The cases, however, upon
which counsel on both sides mainly rely are but few in number.
The defendants refer to Scott v. Avery, 5 H. L. Cas. 811. The
agreement in that case was "that the sum to be paid by this associa-
tion to any suffering member for any loss or damage shall, in the
hrst instance, be ascertained and settled by the committee; and the
suffering member, if he agrees to accept such sum in full satisfaction
of his claim, shall be entitled to demand and sue for the same as I
soon as the amount to be paid has been so ascertained and settled,
but not before; which can only be claimed according to the custom-
ary mode of payment in use by the society; and if a difference shall
arise between the committee and any suffering member relative to
settling any loss or damage, * * * in such case the member
dissatisfied shall select one arbitrator, * "* ** which three arbi-
trators, or any two of them, shall decide ·upon the claims and mat-
ters in dispute according to the rules and customs of the club, to be
proved upon oath by the secretary." The defendants also refer to
Delaware ef H. Canal Oo. v. Pennsylvania Coal C0., 50 N. Y. 250.
In that case the contract was that "in case of an enlargement of the
said canal the said president, managers, and company, and their suc-
cessors and assigns, may also charge and collect an additional toll on
coal transported in pursuance of this agreement, at a rate per ton of
2,240 pounds, to be established after the completion of such enlarge-
ment in the manner following, viz.," etc. In these two cases, there-
fore, it appears that the contract expressly was to pay such a sum
as should be Hxed by arbitration according to a prescribed·plan.
The defendants claim, however, that the agreement here is made
a condition precedent by a necessary implication. Against this view
the plaintiffs cite, among other cases, Dawson v. Fitzgerald, L. R. 1