HOLMES v. PAYNE.

(1930) 37 Ll L Rep 41

KING'S BENCH DIVISION.

Before Mr. Justice Roche.

Insurance (jewellery) - Loss (pearl necklace) -Claim under policy by defendant (assured)-Replacement agreement entered into between parties- Selection of articles of jewellery by assured-Subsequent discovery of necklace in assured's clothing before exhaustion of sum credited to assured under replacement agreement-Underwriter's claim (1) that there was no loss under the policy and that the replacement articles were supplied under a mistake of fact; (2) that the agreement to replace was induced by a representation which was in fact untrue, namely, that defendant had made a thorough search of her wardrobe; and (3) that it was an implied term of the agreement to replace that, if the insured object should be recovered before the replacement was completed, the replacement agreement must be void and the articles supplied under it must be returned-Held, that the assured had made a reasonably diligent search for the necklace; that the agreement to replace was not entered into by reason of the representations of the assured; that there was no distinction between payment and replacement (the fact that replacement had not been completely effected made no difference) and that the underwriters were not entitled to rescind or reopen the agreement-Held, further, that, as the necklace had disappeared and as a reasonable time had elapsed to allow of a diligent search and of recovery, there was a loss within the meaning of the policy, which was not affected by the subsequent discovery of the necklace -Judgment entered for defendant.