policy of the vendor, the company took, by subrogation, a vested right in the executory and unperformed contract existing between the vendor and vendee, of the benefit of which it could not be deprived by any action of the parties to that contract. Such a doctrine seems to be unreasonable and inconvenient, and uncalled for by any serious consideration of public policy. The contract of sale was wholly independent of the policy of insurance, and did not affect the company in any way, provided the terms of the policy did not prohibit it. Subrogation could not apply, for the vendee was not a wrongdoer primarily responsible for the loss, nor was his contract made to insure a preservation of the property. It was a mere incident to the property, the legal title and insurable interest in which still resided in the vendor. Any possible future proceeds from the executory contract of sale, if the parties thereto should ultimately decide to carry it out, could not be brought into an estimate of the amount of loss, for the reason that the measure of damages established by the policy was the cash value of the property destroyed at the time of the fire. It often happens that a fire ultimately turns out to be a source of profit to the insured, but this consideration offers no argument in favor of disturbing an insurance adjustment already settled. The general policy of the courts in passing upon questions of insurance law has been not to allow the doctrine of indemnity to obtrude itself inconveniently, provided the contract of insurance is free from suspicion of being a wager at the time of its inception. The English court conceded that the executory contract of sale furnished no defense to the insurers either in full or pro tanto.

In the Massachusetts standard a mortgagee clause is inserted in the body of the contract.

If a mortgagee is a mere payee, the proofs of loss must be made by the mortgagor,' but under a mortgagee clause the mortgagee may make and verify the proofs, at all events after refusal of the mortgagor to do so."

1 State Ins. Co. v. Maackens, 38 N. J. L. 564. Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176.

2 Graham v. Firemen's Ins. Co., 8 Daly, 421. A Conn. statute gives relief to the mortgagee, Gen. Stat. § 2839.

CHAPTER XV.

STANDARD FIRE POLICY-CONTINUED.

§ 159. Removal of Property for Safety.-If property covered by this policy is so endangered by fire as to require removal to a place of safety, and is so removed, etc.

A wise provision, making more definite an obligation of considerable uncertainty; for the general principle obtains, that where a removal is reasonably necessary under the circumstances of the case on account of impending danger by fire, damages resulting from removal are recoverable against the insurer as proximate loss.1

This provision is not inserted in the Massachusetts form.

§ 160. Notice and Account of Loss.-If fire occur, the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate, etc.

This clause is the result of a careful revision of the provisions previously existing in other forms of policies. It is incumbent upon the insured to pay strict attention to the requirements of the contract in this regard, to limit the loss so far as it lies within his power to do so, to give an opportunity to the company to take such measures with promptness as may seem wise to them to effect the same result, and to furnish them with all reasonable evidence to enable them to determine the nature and extent of their loss.2

An "immediate" written notice of loss is required; then afterwards, "forthwith," the damaged and undamaged per

1 Whitehurst v. Fayetteville Mut. Ins. Co., 6 Jones (N. C.) Law, 352. White v. Republic Fire Ins. Co., 57 Me. 91; s. c., 2 Am. Rep. 22. Stanley v. Western Ins. Co., L. R., 3 Ex.

71. Balestracci v. Firemen's Ins. Co., 34 La. Ann. 844.

2 Bumstead v. Dividend Mut. Ins. Co., 12 N. Y. 81.

sonal property must be separated and arranged and inventoried, and within sixty days the verified statement must be furnished, giving the required particulars of the property and the loss. The terms "immediate notice" and "forthwith " mean with due diligence under the circumstances of the case, of which the jury will ordinarily be the judge, unless the delay seem to the court so great as to be inexcusable.1

In one case the court decided that a delay of forty-eight hours in giving the notice of the fire was without excuse, and a non-suit was directed. In another case, where the policy required immediate proof and notice of loss, a delay of thirtyfive days in sending an inventory of loss was considered excusable. But, in another case, a delay of eleven days without sufficient explanation was held to be unreasonable.*

The policy is, by a previous clause, made payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received. "Satisfactory proof" means proof which ought to be satisfactory. But it is essential that the proofs should be furnished within the specified time, unless the company waives the requirement."

A proper mailing of a notice of loss is a sufficient compliance with the requirement of the policy, that immediate notice of loss must be given in writing. Whether the written proofs constitute a compliance with the warranty of the policy, is properly a question for the court.8

In regard to the essential conditions of the contract of insurance, we have noticed that insanity or other disability furnishes no excuse for a violation, but this rigid rule is relaxed

1 Bennett v. Lycoming Co. Mut. Ins. Co., 67 N. Y. 274. Kimball v. Howard Fire Ins. Co., 8 Gray, 33. People's M. Acc. Asso. v. Smith, 126 Pa. St. 317. Kingsley v. New England Mut. Fire Ins. Co., 8 Cush. 393. Rokes v. Amazon Ins. Co., 51 Md. 512; s. c., 34 Am. Rep. 323. 133 N. Y. 394.

"Walsh v. Washington M. Ins. Co., 32 N. Y. 427. London Guarantee & Acc. Co. v. Fearnley, 43 L. T. N. S. 390.

Underwood v. Farmers Joint Stock Co., 57 N. Y. 500.

7

Susquehanna Mut. Fire Ins. Co. v. Tunkhannock Toy Co., 97 Pa. State,

2 Brown v. London Assur. Co., 40 424; s. c., 39 Am. Rep. 816. Badger Hun, 101.

v. Glens Falls Ins. Co., 49 Wis.

૩ Knickerbocker Ins. Co. v. McGin- 389. nis, 87 Ill. 70.

Trask v. State F. & M. Ins. Co., 29 Pa. St. 198; s. c., 72 Am. Dec. 622.

8

Travellers Ins. Co. v. Sheppard 85 Ga. 802 (1890).

somewhat in respect to the provisions requiring proofs of loss after the risk has terminated; and insanity has been held to constitute a sufficient excuse for the omission to serve a preliminary notice of loss upon the company. Furnishing proofs of loss is a condition precedent, and the loss of the policy is no excuse for not performing it."

If the insured is out of the country, and cannot make the required proofs as stipulated by the policy, it has been sug gested that the court might grant relief, at any rate, to the extent of holding that sufficient proofs by an agent constitute a compliance. In general the insured must make the oath.

If the company entertains any objection to the proofs on account of technical defects, it must make an objection upon that specified ground, or it will be held to have waived them, provided they relate to matters which upon notice could be remedied by the insured; and a refusal to pay the policy based upon other grounds is held to imply a waiver of the formal and technical defects in the proofs.

If demanded, plans and specifications must be furnished." And so also must the required certificate of the nearest magistrate. But the court will not go into a very nice calculation to determine whether one magistrate is a little nearer to the place of the fire than another. Upon this subject there has been legislation (see appendix).

The requirements of the Massachusetts policy are not so detailed.

$161. Exhibit Remains; Submit to Examinations; Books of Account, etc.-The insured, as often as required, shall exhibit to any person designated by this com

1 Insurance Cos. v. Boykin, 12 Wall. 433. Wheeler v. Conn. Mut. Life Ins. Co., 82 N. Y. 543; s. c., 37 Am. Rep. 594. But see Conn. Gen. Stat. § 2839.

Blakeley v. Phoenix Ins. Co., 20 Wis. 205; s. c., 91 Am. Dec. 388. 'Walsh v. Vt. Mut. Fire Ins. Co., 54 Vt. 351. See 112 Ill. 68. 4 Priest v. Citizens Mut. Fire Ins. Co., 85 Mass. (3 Allen), 602. Brink v. Hanover Ins. Co., 80 N. Y. 109.

Fawcett v. Liverpool, London & Globe Ins. Co., 27 U. C. Q. B. 225.

Daniels v. Equitable Fire Ins. Co., 50 Conn. 551. Amer. Cent. Ins. Co. v. Rothchild, 82 Ill. 166. Tinley v. North Am. Fire Ins. Co., 25 Wend. 374. Williams v. Niagara Fire Ins. Co., 50 Iowa, 561. Dolliver v. St. Joseph Fire & Marine Ins. Co., 128 Mass. 315; s. c., 35 Am. Rep. 378.

pany all that remains of any property herein described, and submit to examinations under oath, etc., and produce for examination all books of account, etc.

These provisions confer great privileges upon the insurers, and ought to be enforced by the latter only within bounds of reason and propriety. They are binding upon the insured so far as it lies within his power to comply with them.1

Under this clause the courts do not require the production of proofs which cannot be produced because they have been destroyed by the fire, or for any reason are beyond the control of the insured. And if, by diligent effort, duplicate bills, invoices, or vouchers cannot be obtained, their production will be excused. But, otherwise, they must be produced.*

The company seldom requires the insured to submit to a personal examination, except in those cases where fraud is suspected. But in such cases this provision of the policy is sometimes of great value to the company, and especially if it is obtained before the insured employs legal advice. If the insured gives false testimony in detail upon his examination had under the terms of the policy, it is generally a source of great embarrassment to him upon the subsequent trial of his law-suit. Upon this preliminary examination the representative of the company finds it particularly desirable to cross-examine the insured in regard to the location of the various pretended items of property said to be in the building at the time of the fire, and also to compel him to state in detail where and when he purchased them. If the property is fictitious, it is very difficult for him to tell a plausible story, and he soon finds himself obliged to have recourse to the suspicious response, that he cannot remember. If he locates the fictitious property in detail, and does not have a copy of his testimony at the subsequent trial months or perhaps years afterwards, he will be very apt, when in the witness chair, to tell an entirely different story.

If he states the times and places of purchases from other Council Bluffs Ins. Co., 65 Iowa, 308. People's Fire Ins. Co. v. Pulver, 127 Ill. 246.

1 O'Brien v. Comm'l Fire Ins. Co., 63 N. Y. 108. Titus v. Glens Falls Ins. Co., 81 N. Y. 410. Claflin v. Commonwealth Ins. Co., 110 U. S.

81.

2 Mech. Fire Ins. Co. v. Nichols, 1 Harr. (N. J.), 410. Eggleston v.

Miller v. Hartford Fire Ins. Co., 70 Iowa, 704.

4 O'Brien v. Commercial Fire Ins. Co., 63 N. Y. 108.