The opinion of the court was delivered by: BARD
This is an action on a policy of fire insurance. On the basis of the pleadings and the evidence produced at the trial of this cause, I make the following special
1. The plaintiff is a citizen of the Commonwealth of Pennsylvania.
2. The defendant is a corporation duly organized and existing under the laws of the State of New York, and maintains a place of business at Philadelphia, Pennsylvania.
3. The amount in controversy exceeds the sum of $ 3,000, exclusive of interest and costs.
5. The plaintiff, E. Harmon Friel, became the legal owner of the 'Kenapac Court Apartments' by deed dated November 24, 1943.
6. By endorsement dated December 1, 1943, the defendant recognized Edward H. Frield and/or E. Harmon Friedl, as interest may appear, as assured and owner of the property covered by the policy No. 1876, subject to all the terms and conditions therein contained.
7. The policy of insurance was countersigned and delivered at Atlantic City, New Jersey, by William Bouch and Sons.
8. The policy contained the New Jersey Standard Percentage Co-Insurance Clause which provided that if, at the time of fire, the whole amount of insurance on the property covered by the policy should be less than eighty per cent of the actual cash value thereof, the defendant should, in case of loss or damage, be liable for only such portion of such loss or damage as the amount covered by its policy should bear to the said eighty per cent. of the actual cash value of such property.
9. The policy further limited the liability of the defendant to no greater proportion of any loss to the described property than the amount thereby insured bore to the whole insurance, whether valid or not, covering such property.
10. The total amount of insurance carried on the property was $ 150,000, of which total $ 25,000 was insured by the defendant.
11. Prior to October 23, 1941, discussions arose between Edward H. Friel, the plaintiff's father and predecessor in title, and Benjamin Bouch, his real estate management agent, who was also a policy writing agent for the defendant, as to whether the insurance carried on the premises in question should be increased. As a result of these discussions, Edward H. Friel declined to consider increasing the amount of insurance on the property.
12. In October 1941, Benjamin Bouch requested the defendant to furnish an appraisal of the insured property. The defendant replied by letter dated October 23, 1941, over the signature of M. J. Hartelius. The letter was addressed to William Bouch and Sons, attention of Benjamin Bouch, and stated that after inspecting and measuring the premises in question, the writer estimated that the present day replacement value of the structure would be about $ 174,865; eighty per cent. value $ 139,900, said values having ...