Gilbert v. Globe & Rutgers Fire Ins. Co.

Plaintiff's beach cottage, which was insured by defendant, was totally destroyed by fire. Defendant's adjuster visited the site and fixed the loss at $1,531. Thereafter, the Astoria Lumber Co. brought an action against plaintiff in which a writ of garnishment was issued to compel defendant to pay Astoria the insurance proceeds due plaintiff for the fire loss.

"[A] waiver is a voluntary relinquishment of a known right, while an estoppel consists of a preclusion which in law prevents a party from alleging or denying a fact in consequence of his own previous act, averment or denial. Hence, if a party relinquishes a known right, awarded him by contract, he cannot, without the consent of his adversary, reclaim it. But the ban of an estoppel may be lifted by the party against whom it is invoked, by the giving of proper notice."

Contract Duties | Effects of Express Conditions