Page:Federal Reporter, 1st Series, Volume 2.djvu/666

 •WALLACE V. GEEMAN-AMEBIOAN INS. CO. 659 �The eleventh condition provides as foUows : "It is further- more hereby provided and mutually agreed that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of iaw or chancery until after an award shall have been obtained fix- ing the amount of such claim in the manner above provided." �The amended replication avers that defendant, prior to the commencement of this action, refused to submit to an impar- tial arbitration any differences touching the loss or damage sustained by plaintiff for which this action is brought. To this amended replication defendant demurs, for the reasons — First, that it is not shown that any demand in writing was ever made by plaintiff for the arbitration required by the con- ditions of the policy of insurance; secondly, because the defendant was not required by the terms of said policy to make its election to submit matters of difference to arbitra- tion until after a demand therefor had been made in writing by plaintiff. �It will be seen that the policy of insurance sued on pro- vides for an arbitration to determine the amount of loss in case differences arise touching the same after proof thereof, and "upon the written request of the other party." In a sub- sequent condition it is further provided that no suit shall be eustainable until after an award shall have been obtained in the manner above provided. The two provisions of the policy must be construed together, and thus construed we hold them to mean that the defence that plaintiff has failed or refused to arbitrate oannot be made in a case where neither party has made a written request for such arbitration. Neither party is bound to request an arbitration. The most that can be «laimed is that either party is bound to arbitrate upon the written request of the other ; but whether a refusai to arbitrate would, in any case, defeat the right of action, is a question not now decided. Certain it is that, where neither party has made a written request for arbitration, the clauses of the policy referring to that subject caunot be pleaded or , relied upon as a defence. �The eleventh condition of the policy, which provides that ����