Appeal from Circuit Court, Multnomah County. David Sandeberg, Judge Pro Tempore.
Paul T. Bailey, Portland, argued the cause for appellant. On the briefs were Bailey, Doblie, Ceniceros & Bruun and Joseph F. Ceniceros, Portland.
Austin W. Crowe, Jr., Portland, argued the cause for respondent-cross appellant. With him on the briefs were Cosgrave & Kester, Portland.
This is an action by the insured under a fire insurance policy to collect the difference between the amount paid by an insurance company as the "actual cash value" of the insured property, which was totally destroyed by fire, and the face amount of the policy. The case was tried before the court, sitting without a jury. Plaintiff appeals from an adverse judgment, based upon general findings of fact in favor of defendant. We affirm.
The insurance policy included standard provisions to the effect that only the "actual cash value" of the property was payable in the event of total loss unless the house was rebuilt and replaced. The face amount of the policy was $12,000. After the fire a proof of loss was prepared by defendant's adjuster and
signed by plaintiff, stating that "The Actual Cash Value of said property at the time of the loss was $9,000," and that "The Amount Claimed under the above numbered policy is $9,000."
The sum of $9,000 was then paid by defendant to plaintiff, who attempted to arrange financing for the rebuilding and replacement of the house, but was unable to do so. He then demanded payment of an additional $3,000, representing the difference between the amount paid and the face amount of the policy. Upon defendant's refusal to do so this action was filed.
Plaintiff's primary contention is that the trial court erred in holding that plaintiff and defendant agreed upon $9,000 as the amount of the "actual cash value" of the destroyed property.*fn1 Thus, the controlling issue to be decided in this case, as stated by plaintiff, is whether there is substantial evidence in the record to support the finding by the trial court that the parties agreed upon that amount.*fn2
Upon examining the entire record we find that although there was a direct conflict of testimony on that issue, there was substantial evidence to support that finding.
First of all, defendant's adjuster testified that although he prepared the proof of loss form, including the figure of $9,000 ...