Reports of Cases Argued and Determined in the Supreme Court of the State of Montana from December Term 1868, to Volume 41
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1911 edition. Excerpt: ...Ins. Co." (10 Mont. 340, 24 Am. St. Rep. 50, 25 Pac. 953). The case of Randall v. American Fire Ins. 00., discloses at once the theory upon which the court was proceeding in the Phoenix Case; and, assuming, for the purposes of this appeal, the soundness of the decision in the American Case, there does not appear to be anything in the decision in that case to justify the language used in the Phoenix Case. Since the amount of plaintifi's loss was fixed by the award, he cannot maintain an action upon the policy and have a readjustment of the loss without having the award set aside; and the first count of the complaint may, therefore, be dismissed from further consideration. 41 M0nt.--25 The plaintiff cannot rely upon the award, and at the same time ask to have it set aside. He may do either, but he cannot do both. However, the second count discloses that the plaintiff does not seek to have the award set aside, but does rely upon it; and while under certain circumstances he might in one cause of action sue for the amount of the award, and in another for the loss which he sustained upon goods covered by the policy of insurance, but which was not made subject to the appraisement, he has not done so in this instance; but his cause of action for the amount of the award is not vitiated by the other allegations in this second count, which may properly be treated as surplusage. This view requires the judgment to be reduced to the amount of the award in any event. The second count appears to contain every necessary allegation in an action for the amount of the award (11 Ency. of Pl. & Pr. 411); and the demurrer to this count and the objection to the introduction of any evidence were properly overruled. While we are left somewhat in...
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