Roulstone v The Alliance Insurance Company

• Jurisdiction: Ireland
• Judgment Date: 21 February 1879
• Date: 21 February 1879
• Court: Exchequer Division (Ireland)

Ex. Div.

ROULSTONE

and

THE ALLIANCE INSURANCE COMPANY.

Ex parte GlaysherENR 3 H. & C. 442.

Candler v. FullerENR Willes, 62.

Thorp v. ColeENRENR 4 Dowl. 457; 2 C. M. & R. 367; 1 M. & W. 531.

Holdsworth v. WilsonENRENR 2 B. & S. 480; 4 B. & S. 1.

Allen v. MilnerENR 2 C. & J. 47.

Dearle v. Barrett 2 Ad. & Ell. 82.

Thorpe v. CooperENR 5 Bing. 116, per Best, C. J., 129.

Milissich v. LloydsUNK 36 L. T. (N. S.) 423.

Gascoyne v. EdwardsENR 1 Y. & J. 19.

Commings v. HeardELR L. R. 4 Q. B. 669.

Adcock v. WoodENRENR 6 Ex. 814; 7 Ex. 468.

The Thames Iron Works and Shipbuilding Company (Limited) v. The QueenUNK 20 L. T. (N. S.) 318.

Kendrick v. Davies 5 Dowl. 693.

Ex parte GlaysherENR 3 H. & C. 442.

Holdsworth v. BarshamENR 2 B. & S. 480.

Allen v. MillnerENR 2 C. & J. 51.

Arbitration Submission by parol Award of costs, not specifying amount Uncertainty Pleading Performance Practice Application to set aside judgment entered at trial, without leave reserved G. O. XXXIX., R. 4.

Von. IV.] Q. B., C. P., & EX. DIVISIONS. 547 ROITIBTONE v. THE ALLIANCE INSURANCE . COMPANY. Arbitration-Submission by parol-Award of costs, not specifying amountÂÂUncertainty-Pleading-Performance-Practice-Application to set aside judgment entered at trial, without leave reserved-G. 0. XXXIX., R. 4. In an action upon a policy of insurance against fire, the Defendants, an Insurance Company, in their statement of defence relied upon a clause in the policy which provided that any claim should be referred to arbitration; and alleged the appointment of arbitrators, and an award by the arbitrators of a certain sum in satisfaction of the claim, together with whatever costs might have arisen in the case up to that date, but without specifying any sum as awarded for such costs. The statement of defence further averred a tender of the sum awarded for the loss, and the Defendants' willingness to pay the costs awarded, but alleged that the Plaintiff neglected to ascertain and. vouch the amount of the costs, and thus prevented the Defendants from complying with the award. At the trial it was proved that the arbitrators were appointed by parol, and that their award was to the effect stated in the plea. The only questions submitted to the jury were, whether arbitrators had been appointed and an award made, as pleaded ; and on their finding in the affirmative, a verÂÂdict and judgment were directed for the Defendants :- • Held, 1. That the award was bad for uncertainty; because, as the submisÂÂsion was by parol, and incapable of being made a rule of Court, the costs awarded could not be ascertained by taxation, and were left unascertained by the award itself. 2. That even assuming the award valid, performance would have been. necessary to constitute an answer to the action. 3. That, under G. 0. XXICTX , R. 4, it was open to the Plaintiff to move to set aside the judgment entered for the Defendants, and to apply to, have judgment entered for him, on the ground that there was no evidence of exÂÂcuse for non-performance, as pleaded, and that, therefore, the judgment had been wrongly entered for the Defendants, with reference to the finding of the jury upon the questions submitted to them; and that the Plaintiff was entitled to have the judgment so entered for him although he had not moved for judgment non obstante veredicto. MOTION on behalf of the Plaintiff, that the judgment enÂÂtered for the Defendants should be set aside and judgment entered for the Plaintiff. The action was brought to recover 500 upon a policy of insurance against Ere. The Defen.- LAW REPORTS (IRELAND). [L. R. 1, dants, amongst other defences, pleaded, that the policy was subject to a certain condition therein that, if any difference should arise as to the amount of any claim thereunder, it should be referred to the arbitration of certain arbitrators to be appointed, who should also decide upon the costs of the reference ; that the arbitrators and umpire were duly appointed, and an award in writing duly made and published, whereby the Defendants were to pay to the Plaintiff 150, in satisfaction of the claim, and also, whatever costs might have arisen in the case up to that date; and that the Defendants sent to the Plaintiff a draft for 150, and were always ready and willing to pay the costs awarded, when the same should be ascertained ; but that the Plaintiff neglected to ascertain and vouch the amount of his said costs, and thus preÂÂvented the Defendants from complying with the said award. The condition referred to was as follows :-" If any differences shall at any time arise, between the Company and the insured, or any claimant under this policy, as to the amount of any loss or...