32 FEDERAL nnronzrsa.
Excli. D1v. 257; Schollenberger v. Phaema: Ins. O0., 7 Ins. Law J. 697;
Reed v. Washington F. tt M. Ins. Co., 138 Mass. 572; Clement v.
Brtttsh Amertca Assur. Co., (Sup. Ct. Mass.) 5 N. E. Rep. 847. I
therefore dec1de that should the questions to which reference has been
made be raised before me in a. trial of these cases with a jury, I should
overrule the objection of the defendants, and permit the evidence of
amount of loss to go to the jury; and I should overrule the request of
the respondents for an instruction to the jury that the plamtuf 1B not
entitled to recover.
NOTE.
It is said in Gauche v. London & Lancashire Ins. Co., 10 Fed. Rep. 347, that the con-
ditions in a policiy of insurance requiring preliminary proofs, and a reference to arbitra-
tion in case of di erence, are conditions precedent to a suit u on the policy.
It was held by the supreme court of Iowa in Gere v. C0uncil)Bluffs Fire Ins. C0., 23 N.
W. Rep. 137, t at where a fire insurance poli rovides that in case differences shall
arise as to the amount of loss the subject shgll be submitted to arbitration on the re-
quest of either party, and the award made in writing shall be binding as to the amount
of loss or damage, it does not render an arbitration a condition prece ent to the right of
the insured to sue to recover a loss, but is nothin more than a mode of providing what
should be deemed conclusive evidence of one of the facts.
A fire insurance policy provided for arbitration in case of loss. Through the failure
and refusal of defendant to go on with the arbitration agreed upon it became ineffectual,
and in the mean time, partly under orders of the city, the debris was removed. Defend-
ant then requested plaintiff to submit to a second arbitration. which he refused to do,
and brought this action. Held, that plaintiff having once consented to arbitrate, if the
arbitration failed and came to an end from the fault of the defendants, the arbitration
clause could not stand in the way of the action. Uhrig v. Williarusburg City Fire Ins.
Co., (N. Y.) 4 N. E. Rep. 745.
It is not infrequently provided in policies of insurance that any dispute arising un-
der the policy shall be referred to arbitrators. Such agreements to arbitrate do not
oust the courts of their jurisdiction. Allegre v. Maryland Ins. Co., 6 Har. & J. 408;
Robinson v. Georges Ins. Co., 17 Me. 131; Kill v. Hollister, 1 Wils. 129; Amesbury v.
Bowditch Ins. Co., 6 Gray, 596.
Where the underwriters refused to pay the loss of the assured, his right of action
has been held immediately to accrue, although there was a clause in the policy that
payment was not to be made until 90 days after proof and adjustment of the loss, and
that, in case of dispute,' the same might be settled by arbitrators. Allegro v. Maryland
Ins. Co., 6 Har. & J. 408.
Under such a provision an action may be sustained without any offer to refer. Robin-
son v. Georges Ins. Co., 17 Me. 131.
But if there be a reference depending, or made and determined, it might be a bar.
Kill v. Hollister, 1 VVils. 129.
In Avery v. Scott, 8 Welsb., H. & G. 497, it was decided that, although an agreement
which ousts the courts of their jurisdiction is illegal and void, yet an agreement in a pol-
icy of insurance asto arbitration was not of that description, since it did not deprive the
plaintiff of his right to sue, but only rendered it a condition precedent that the amount
to be recovered should be first ascertained. either by the committee or arbitrators. V
In Goldstone v. Osborn, 2 Car. tit P. 550. it was held that the insured might maintain
an action on such a policy, notwithstanding the condition, when it appeared that the
insurers denied the general right of the insured to recover, and did not merely ques-
tion the amount of damage.
So he may, if the insurance company waive the right to a submission to arbitration,
as by taking possession and repairing the thing insured. Cobb v. New England M. Ins.
Co., 6 Gray, 193. '
The edect of an agreement to refer to arbitration. where no reference has taken place,
cannot take away the 'urisdiction of any court. See Mitchell v. Harris, 2 Ves. Jr.‘129,
and Street v. Rigby, 6JVcs. Jr. 814.
A simple agreement inserted in a contract. that the parties will refer any dispute aris-
ing thereunder to arbitration will not bar a suit at law by either party upon the con-
tract before an offer to arbitrate; but when the contract stipulates that the arbitra-
tion is to be a condition precedent to the right to sue upon the contract, or this may be
inferred upon construction. no suit can he maintained unless the plaintiff made all
reasonable effort to comply with the condition. Perkins v. United States Electric Light
C0., 16 Fed. Rep. 513.