by or would not have occurred but for a peril excepted in the contract of insurance, the defendant shall in his answer set forth and specify the peril which was the proximate cause of the loss, in what manner the peril excepted contributed to the loss or itself caused the peril insured against, and if he claim that the peril excepted caused the peril insured against, he shall in his answer set forth and specify upon what premises or at what place the peril excepted caused the peril insured against.

"This Act shall apply to all pleadings filed after the passage of this Act, as well as actions then pending as in those thereafter begun." (In effect March 21, 1907.)

Section 212.-NOTICE OF LOSS.-In case of loss by fire, the insured must give notice to the company of the loss, without unnecessary delay. If the policy fix the time within which notice of loss must be given to the company, the insured must give notice within that time; if the policy does not fix the time, the insured must give notice of the loss within a reasonable time. The notice may be given to an agent of the company, or it may be sent to the office of the company, and it may be sent by the most available means, by mail, or in person. If the policy provides that the notice must be in writing, it must be so given, but verbal notice will be sufficient without such provision.

Civil Code, Section 2633.

Section 213.-PRELIMINARY PROOFS OF LOSS.When preliminary proofs of loss are required by a policy, the insured is not bound to give such proof as would be necessary in a court of justice; but it is sufficient for him to give the best evidence which he has in his power at the time. All defects in a notice of loss, or in preliminary proof of loss, which the insured might remedy, and which the insurer omits to specify to him without unnecessary delay as grounds of objection, are waived. Delay in the presentation to an insurer of notice or proof of loss is waived,

if caused by an act of the insurer, or if he omits to make objection promptly and specifically upon that ground. If a policy requires, by way of preliminary proof of loss, the certificate or testimony of a Justice of the Peace, or other person, it is sufficient for the insured to use reasonable diligence to procure it, and in case of the refusal of such person to give it, then to furnish reasonable evidence to the insurer that such refusal was not induced by any just ground of disbelief in the facts necessary to be certified to. Civil Code, Sections 2634, 2635, 2636, 2637.

Section 214.-DOUBLE INSURANCE.-A double insurance exists where the same interest in property is insured by several insurers separately. In cases of double insurance, the several companies must contribute ratably toward the loss, without regard to the dates of the several policies. Civil Code, Section 2642.

Section 215.-ALTERATION INCREASING RISK.An alteration in the use or condition of a thing insured from that to which it is limited by the policy, made without the consent of the insurer, by means within the control of the insured, and increasing the risk, entitles an insurer to rescind a contract of fire insurance.

Civil Code, Section 2753.

Section 216.-ALTERATION WHICH DOES NOT IN CREASE RISK.-An alteration in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance.

Civil Code, Section 2754.

Section 217. VERBAL CONTRACT TO ISSUE POLICY.-A verbal contract to issue a policy, made by the owner of the property and the agent of the company, is a valid agreement. Therefore, if the owner of a building. applies to an agent, or if the agent solicits the insurance,

and a verbal agreement is made for a consideration that a policy will be issued for a certain amount covering the property, and the company then refuses to issue the policy, it will be liable for the loss, whether the policy is issued or not. If a fire occurs and destroys the property, the owner can sue the company for damages, for its failure to issue the policy, and recover his loss on the property, not exceeding the amount of insurance verbally agreed upon.

Section 218.-CERTIFICATE OF NOTARY.-Under a provision of a fire insurance policy requiring that in case of loss by fire the assured must obtain the certificate of the Notary nearest the insured building, not concerned in the loss as a creditor or otherwise, nor related to the assured, as to the justice of the claim, where it appears that the nearest Notary refused to act, on the ground that he was employed by the insurance company in ascertaining the facts and taking affidavits concerning the fire, the assured is relieved of the necessity of obtaining his certificate, and need not inform the company of the reason for obtaining the certificate of another Notary. (Decided by the Supreme Court in case of Noone vs. Transatlantic Fire Insurance Co., which decision is printed in Volume 88 of the California Reports, page 152.)

Section 219.-FALSITY OF MATERIAL REPRESENTATIONS BY INSURED.-One who makes an application for fire insurance must not make false representations, as to any material fact upon which the insurance depends, for if he does the company may cancel the policy. This the company may do by making a tender of the premium back to the insured, and notifying him that the policy is canceled on account of the false representation. And if the company, where a false representation has been really made, tenders the premium back and gives the insured notice of the cancellation of the policy, before the commencement of a suit on the policy, this will operate as a

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rescission of the policy and will defeat the suit. illustration, it may be cited, that a condition in a policy of insurance upon a mill, that during such time as the mill is idle a watchman shall be employed by the insured "to be in and about the premises day and night," is broken if during the time the mill is idle but one watchman is employed, who was not instructed to watch the mill at night, and who slept every night in a building three or four hundred feet from the mill. A man employed to watch in the daytime, and who is permitted to sleep at night, is not a watchman at night. And to entitle the insured to recover upon such a policy it must be shown that he has in good faith employed a watchman to perform the duties required by the terms of the policy. (Decided by the Supreme Court in the case of Rankin vs. Amazon Insurance Co., which decision is printed in Volume 89 of the California Reports, page 203.)

Section 220.-STATEMENTS AS TO VALUATIONS. -A provision in the policy that the application shall be considered a warranty, and if the property is overvalued in it, the policy shall be void, applies only where the statements as to value are intentionally false.

If there is no valuation in the policy, the measure of indemnity in an insurance against fire is the expense it. would be to the insured, at the time of the commencement of the fire, to replace the thing lost or injured in the condition in which it was at the time of the injury.

Act of the Legislature, approved April 15, 1909.

Section 221.-RIGHTS OF MORTGAGEE-EFFECT OF SALE UNDER FORECLOSURE.-A mortgagee of insured property, to whom the loss is made payable, is entitled to recover the loss to the full extent of the mortgage debt, although the fire occurs after a foreclosure sale and purchase by the mortgagee, but before the time for redemption has expired and before the execution of a

sheriff's deed to the mortgagee. (Decided by the Supreme Court in the case of National Bank vs. Union Insurance Co., which decision is reported in Volume 88 of the California Reports, page 497.)

Section 222.-INSURANCE BY COMMISSION MERCHANT-INCORRECT STATEMENT AS TO OWNERSHIP.-The Springfield Fire and Marine Insurance Co. insured against loss by fire a stock of goods, the property of a corporation in which F. H. McCormick and F. N. Delanoy were stockholders; McCormick and Delanoy held the goods as security for advances made to the corporation, but in the application for the insurance they described the property as their own. The policy referred to the application, and made it a part of the policy, and provided that if the insured were not the sole, absolute, and unconditional owners of the property, and if their interest was not truly stated in the policy, then the policy should be void. McCormick and Delanoy sued the company for the insurance, but the Supreme Court decided that the policy was invalid, because the ownership was not truly stated in the application. (Decided by the Supreme Court in case of McCormick vs. The Springfield Fire and Marine Insurance Co., which decision is printed in Volume 66 of the California Reports, page 361.)

Section 223.-RIGHT OF ARBITRATION.-When a policy of fire insurance provides for arbitration upon the written request of either party, in case of difference touching any loss or damage after the proof, the arbitration is not a condition precedent to the right of action, unless demanded after proof of loss; and if no demand for arbitration is made within a reasonable time, or until after a right of action has become complete by the lapse of sixty days. from the proofs of loss, the right to demand arbitration is waived. No right of arbitration exists under a fire insurance policy when the stipulation for arbitration does