Appeal, No. 111, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, April T., 1948, No. 1917, in case of City of Pittsburgh et al. v. Firemen's Insurance Company of Newark. Judgment reversed.
Oscar G. Peterson, Assistant Solicitor, with him Mortimer B. Lesher, Solicitor, Niles Anderson, Assistant Solicitor, Anne X. Alpern, City Solicitor, Emanuel F. Schifano, Assistant City Solicitor, Nathaniel K. Beck, County Solicitor and Joseph A. Cirillo, Assistant County Solicitor, for appellants.
D. C. Jennings, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiffs, the City of Pittsburgh, the School District of the City of Pittsburgh and the County of Allegheny, acquired at a sale for nonpayment of taxes certain real estate consisting of a lot of ground and a dwelling house thereon erected. After becoming joint owners of the property, the three taxing authorities took out fire insurance on the dwelling in a stated sum with the defendant, the Firemen's Insurance Company of Newark. The policy was on a standard form containing the usual coverage provisions and the usual conditions including requirements of immediate notice by the insured to the company of any loss and the rendering by the insured to the company of a proof of loss within sixty days of a fire.
On February 17, 1947, while the policy was in force, the dwelling was damaged by fire whereof the plaintiffs admittedly gave the defendant immediate and proper notice. It so happened that the municipal owners had advertised the property for public sale on February
, 1947, at an upset price of $9,000; and, on that day, but prior to the fire, a bid of $9,000 for the property had been received by the authorized representative of the three taxing bodies. The bid was never accepted, however. The insurance company promptly referred the matter of the fire loss to an adjusting agency as its representative. On March 6, 1947, the adjuster addressed a letter to the attention of H. R. Greene, agent for the plaintiffs in respect of the property. In that letter the adjusting agency's representative, with the avowed approval of the insurance company, proposed that the property be again offered for sale and, if a bid of less than $9,000 was received therefor, the insurance company "would be agreeable to assume the loss between that amount and the sale price, in addition to the additional expense to which [the taxing bodies] would be put to hold another sale on [sic] the property."*fn1 This proposed method of loss adjustment had
neither been accepted nor rejected by the taxing bodies by August following when Greene asked for a further meeting with the representative of the adjusting agency. At the ensuing meeting on August 11, 1947, the representatives of the insurance company laid before Greene a "non-waiver agreement" and stated that they would not discuss the matter of loss adjustment further unless he signed it. Greene replied that he was without authority so to do. The purpose of the proposed "non-waiver agreement" was to toll any possibly existing waiver by the ...