Particular Facts and Issues as to Waiver. it refuses to do so and replies generally no further proof of loss will be required. that they do not correspond with the Swain v. Agricultural Ins. Co., 37 Minn. policy and refusing to accept them as a 390; 34 N. W. Rep. 738. compliance therewith, it is not sufficient. Mutual Fire Ins. Co. v. Block, 16 Ins. L. J. 649 (Pa.) 324. Where policy insures a horse against fire or lightning, and assured notifies agent of a loss, making a claim simply upon fact that horse is dead without stating and declining to state the cause, a reply that company is not liable, and refusal by adjuster to investigate the loss, do not operate as a waiver of proofs. Cornett v. Phoenix Ins. Co., 15 Ins. L. J. 128; 67 Iowa, 388. 325. When statement is made by a local agent after insured is in default for not serving proofs, and it appears that it did not and could not have influenced the latter's action in respect to the loss, such statement can not operate as an estoppel. Engebretson v. Hekla Fire Ins. Co., 58 Wis. 301. 331.- After an insurance company has itself taken cognizance of a loss and prepared such proofs as it deems essential to an adjustment, the insured may assume, until notified to the contrary, that additional notice and proofs are not required. American C. Ins. Co. v. Sweetser, 116 Ind. 370; 19 N. East. Rep. 159. 332.- A stipulation in a fire insurance policy, that the insured must, after a loss, forthwith give notice thereof, and that he must, as soon after as possible, render a sworn account of the loss, is material and imperative, unless waived, and the mere silence of the insurer after loss is not a waiver of the notice or of the sworn proof. And the notice will not suffice both for itself and in place of the sworn proof required, and it may be waived without waiving the sworn proof. Central City Ins. Co. v. Oates, 86 Ala. 558; 6 So. Rep. 83. 333.- Failure to furnish proof of loss within the time required is waived where the insured, after attempting to do everything necessary, is lulled into security by the acts of the company or its agent, and is led to believe they are preparing to adjust his loss. *Kenton Ins. Co. v. Wigginton, 7 L. R. A. 81; 11 Ky. L. Rep. 539; 12 S. W. Rep. 668; 89 Ky. 330. 326. An agreement by an insurance company with a person insured, to pay whatever appraisers would make as the amount due to the latter, as soon as the value was made, is a waiver of preliminary proofs of loss. Snowden v. Kittanning Ins. Co., 22 W. N. C. 554; 16 Atl. Rep. 22; 122 Pa. 502; 46 Phila. Leg. Int. 58. 327.— An objection made by the company to proofs of loss, that they are "deficient both in form and substance," 334.- Proofs of loss may be waived in is too general. Myers v. Council Bluffs favor of a creditor of the insured, who Ins. Co., 72 Iowa, 176; 33 N. W. Rep. 453. garnishes the insurer, by conduct of the 328. A letter to a person insured, ad- latter known to the creditor, although not vising her of her right to reopen the mat-known to the insured. *Ritter v. Boston ter and make proofs of loss, informing her what must be established thereby, cannot be held to waive proofs of loss. Walsh v. Des Moines Ins. Co., 77 Iowa, 376; 42 N. W. Rep. 324. 329.- Acceptance of proofs of loss after time limited in policy is a waiver of the condition. Commercial U. Assur. Co. v. Hocking, 6 Cent. Rep. 915; 115 Pa. 407. 330.- Special authority to go and see about a loss-see what the building was and look it over-constitutes sufficient authority to get the insured to make a written statement relating to the loss, and agree that he appoint a carpenter to furnish an estimate of the cost of the building, giving him to understand that Underwriters' Ins. Co., 28 Mo. App. 140. 335.- Where a company after being notified of a loss obtains possession of the policy and refuses to adjust the loss and so notifies the assured, proof of loss is waived by the company. *Norwich, etc. Ins. Co. v. Girton, 124 Ind. 217. 336. The collection by an insurance company, after a loss, of a note given for part of the premium, is not a waiver of the proof of loss required by the policy. *Shimp v. Cedar Rapids Ins. Co., 26 Ill. App. 254; affi'd, 13 West. Rep. 857; 16 N. East. Rep. 229. 337.- If a compromise of a claim for insurance was the result of fraud on the part of the insurer or its agents, the in Particular Facts and Issues as to Waiver. sured does not lose the benefit of it as to a waiver of proofs of loss by repudiating the compromise in respect to the amount. *Platt v. Continental L. Ins. Co., 19 Atl. Rep. 637; 62 Vt. 166. be settled thereon. *Green v. Des Moines F. Ins. Co., 50 N. W. Rep. 558 (Iowa). 345. The failure of an insurer asking by correspondence for further particulars in respect to matters contained in the proofs of loss furnished, to request that such further information be verified, is a waiver of that formality. *Hanover F. Ins. Co. v. Lewis, 10 So. Rep. 297; 21 Ins. 338. The fact that a policy requires a certificate of the nearest justice of the peace as a part of the proofs, and that the nearest justice refuses to give the requisite certificate, does not dispense with the ne-L. J. 316; 28 Fla. 209. cessity for proofs of loss, although the certificate of another justice may then be sufficient. *Leigh v. Springfield F. & M. Ins. Co., 37 Mo. App. 542. 339. The fact that, after the expiration of the time for the delivery of proofs of loss, the company make an offer of compromise to the assured, does not waive the proofs. Id. 340.- A parol waiver of a condition in an insurance policy as to proofs of loss may be made, despite a provision in the policy requiring it to be done in writing. *Phonix Ins. Co. v. Bowdre, 67 Miss. 620; 19 Ins. L. J. 916; 7 So. Rep. 596; Lowry v. Lancashire Ins. Co., 32 Hun, 329 (N. Y.) 341.- The waiver of the proofs of loss required in an insurance policy may be inferred by any act of the insurer evincing a recognition of liability; and the courts will not scan very strictly the evidence which tends to rebut a technical forfeiture of the right to payment. *Thierolf v. Universal F. Ins. Co., 110 Pa. 37; 20 Atl. Rep. 412. 342.- A requirement in an insurance policy as to the furnishing of proofs of loss is not waived by a failure of the company to demand such proof and to furnish blanks therefor, where the company has not denied its liability on the policy. *Continental Ins. Co. v. Dorman, 125 Ind. 189; 20 Ins. L. J. 119; 25 N. East. Rep. 213. 343.-Proofs may be waived by consent of parties after the occurrence of the fire, notwithstanding specific regulations in the policy. *Baumgartel v. Providence Washington Ins. Co., 39 N. Y. S. Rep. 627; 15 N. Y. Supp. 573; 61 Hun, 118; rev'd 39 N. East. Rep. 990, on another point. 344.- Formal proofs of loss are waived by an insurance company which, by its acts or declarations, induces the insured to believe that a letter intended and supposed by him to be sufficient was accepted as such, and that the loss would 346. It is a sufficient excuse for the failure of an assured to give notice and furnish proofs of loss within the time required by the policy, that the company already had actual notice thereof and relieved him from the duty of giving further notice or furnishing proofs. *Phœnix Ins. Co. v. Pickel, 29 N. East. Rep. 432; 3 Ind. App. 332. 347.- Stipulations for the furnishing of preliminary proofs, by an insured, of loss under the policy, are conditions precedent to his right to recover, but may be waived by the insurer, or the latter may estop itself from setting them up. *Peninsular Land Transp. & M'f'g. Co. v. Franklin Ins. Co., 14 S. E. Rep. 237; 35 W. Va. 666. 348. A condition of an insurance policy requiring proofs of loss may be waived by any acts or statements on the part of the insurer or his proper agents which might fairly induce the insured to conclude that the proofs are dispensed with or excused, and influence him, in good faith and in reliance thereon, to act in accordance with such belief. Id. 349.- A stipulation as to waiver same as in the New York Standard Form, prevents a company from being bound by representations of an agent regarding a delay in the adjustment, claimed to operate as a waiver of timely proofs. *Gould v. Dwelling House Ins. Co., 21 Ins. L. J. 328; 51 N. W. Rep. 455; 90 Mich. 302. 350.- An objection to proofs upon a specified ground is not inconsistent with an intention to rely upon another defense afterwards made upon the ground of a forfeiture by reason of commencement of foreclosure proceedings; nor does the omission to take such ground when objecting to the proofs operate as a waiver of it. *Armstrong v. Agricultural Ins. Co., 130 N. Y. 560; rev'g, 56 Hun, 399: 31 N. Y. S. Rep. 201; 9 N. Y. Supp. 873. Other Special Cases. 351. Other special cases. Where a acts and declarations of company's adpolicy of insurance against fire provided juster, is excused from furnishing proofs that in case of loss the assured should of loss within the thirty days as pregive immediate notice, and as soon as scribed by policy in suit. This may be possible render under oath a particular so held on the ground of "mistake" account of such loss, “stating whether under Insurance Policy Act, R. S. O. ch. any and what other insurance had been 162. Robbins v. Victoria Mutual Ins. made on the property, giving copies Co., 31 Up. Can. C. P. 562; 6 Tupper, 427. of the written portions of all policies thereon;" held, that the furnishing of such copies was a condition precedent, without the performance of which (if not waived by the company) no recovery could be had on the policy; and that the until such notice, account, etc., are inability of the assured to give such copy on account of the loss of the policy afforded no excuse. Blakeley v. Phonix Ins. Co., 20 Wis. 205. 352. Insanity is a sufficient excuse for non-compliance with the requirement as to preliminary proofs; but if adequate proofs are sent it does not make any difference whether made by an insane man or not. Insurance Cos. v. Boykin, 12 Wallace, 433 (U. S.) 353.- A railroad company insured against their liability for loss caused to the property of others by locomotive sparks, must give the notice and proofs of loss required from assured when his own property is lost. Eastern R. R. Co. v. Relief F. Ins. Co., 99 Mass. 420. 354.- Where statement in proofs was "stock in tannery, hides and leather, $56,500," it was held error to assume that it referred exclusively to hides and leather. Planters Mut. Ins. Co. v. Deford, 38 Md. 382. 355.- Policy required assured to state in his proofs of loss "the whole value and ownership of the property insured." Held, assured is not required to make any statement in regard to encumbrances. Taylor v. Ætna Ins. Co., 120 Mass. 254. 359.- Policy provided that assured should give notice of fire forthwith, "and within fifteen days at latest, furnish a particular account, etc., .. and in default thereof no claim should be payable given and produced." Assured having furnished an account twenty-two days after fire, held, that his furnishing such account, from peculiar wording of the condition, was not a condition precedent to his right to recover. Weir v. Northern Cos. Ins. Co., 4 L. R. Ireland, 689. 360. When the policy upon a building is a valued one, and there is a total loss, notice of such loss is sufficient without proofs or more particular statement. Farmers' Fire Ins. Co. v. Moyer, 97 Pa. 441; Pennsylvania Ins. Co. v. Dougherty, 13 Ins. L. J. 52; 102 Pa. 568. 361.- In case of a building totally destroyed notice of loss answers all requirements as to proofs; but this rule does not apply to the contents of a building. Universal Fire Ins. Co. v. Weiss Bros., 13 Ins. L. J. 573; 23 Atl. Rep. 991; 106 Pa. 20; Home Ins. Co. v. Davis, 98 Pa. 280; 12 Ins. L. J. 449; Amer. Cent. Ins. Co. v. Haws, 9 Cent. Rep. 413; 11 Atl. Rep. 107; 20 W. N. C. 370 (Pa.) 362. A particular statement of the items of a loss cannot be required in case of a total loss to a single structure or building. German American Ins. Co. v. Hocking, 16 Ins. L. J. 546; 6 Cent. Rep. 911; 115 Pa. 398. 358.- Honest statement of facts in 363.- Proofs of loss due and not proofs cannot enlarge their legal effect waived defeat a garnishment. Lovejoy v. and make them a defense, if they would Hartford Ins. Co., 11 Ins. L. J. 186 not otherwise be one. City Five Cent│(U. S. Cir.) In this case the court Sar. Bank v. Penn. Ins. Co., 122 Mass. 165. ¦ (Blodgett, J.) recognized the existence 357.- When assured holds four poli- of a different rule in Pennsylvania, but cies of the same company upon same followed the rule laid down in Michigan, property he is not required to furnish Wisconsin, and Maine. more than one proof of loss. Dakin v. 364.- Neglect of the insured to furLiv., L. and G. Ins. Co., 13 Hun, 122; nish a detailed statement of the loss, aff'd, 77 N. Y. 600. under the Massachusetts standard fire 358.- Assured, having been misled by policy, will not of itself defeat a claim. Condition Precedent - Cross References. Towne v. Springfield F. & M. Ins. Co., 5 Subd. I. Examination. No. 15. Section seventeen. Appraisal. No. 96. Section eighteen. Payment of loss. Nos. 5, 9, 41. 365.- Where two accounts of loss and two certificates of the magistrate are fur-Section nineteen. twenty-one. Limitation. No. nished by the insured to the company Subd. II. Reinsurance. Nos. 20 et seq., and retained by it, they are to be taken 48. together and constitute the proof of loss. *Brown v. Hartford F. Ins. Co., 52 Hun, 260; 23 N. Y. S. Rep. 683; 5 N. Y. Supp. 230; aff'd (no opinion), 132 N. Y. 539. Section Section twenty-four. Waiver. Nos. 7, 8, 20, 28, 31, 34, 77, 120, 130a. 366. In the condition of a policy of insurance requiring statement of loss, with the title or interest of the assured, names, etc., of the other parties interested therein, other insurance, manner of occupation, and when and how the fire IV. PLANS AND SPECIFICAoriginated, as far as the assured may know or believe," the phrase, as far as the assured may know or believe," refers only to the origin of the fire. *Morrison v. London F. Ins. Co., 6 Manitoba L. Rep. 225. 66 367. The provision of a policy that the assured shall, in his proofs of loss, state the interest and title, etc., means state the title at the time of the loss. *Jones v. Howard Ins. Co., 26 N. Y. S. Rep. 844; 117 N. Y. 103; 22 N. East. Rep. 578. 368. A statement in proofs of loss that the cause of the fire is to the assured unknown sufficiently states the origin of the fire. Id. 369. Cross references. Section one. TIONS. 1. Condition precedent. The assured, on loss, was to produce such evidence as the directors should reasonably require; a builder's certificate, as to value, having been demanded by one whose act the directors adopted, was a condition precedent to a suit, the plaintiff having brought action four days before furnishing it, must be non-suited. That whether what was furnished complied with the requisition might be a question for the jury. Fawcett v. Liverpool, Lond. & Globe Ins. Co., 27 Up. Can. Q. B. 225. 2. Waiver. An insurance company which has employed a carpenter of its own choosing to make plans and es Subd. II. Parties or persons insured. timates for replacing a building destroyed, No. 42. Section two. and thereafter has proposed to settle the loss on a basis of his estimate, waives the Subd. I. Measure of damage. Nos. performance of a stipulation in the policy 114 et seq. Section three. with reference to furnishing plans and specifications if required. Ligon v. Equi Subd. I. Repair, rebuild, etc. No. 2. table Fire Ins. Co., 87 Tenn. 341; 10 S. W. Section four. Subd. V. Fraud and false swearing. Rep. 768. 3.- An objection to the admission of a builder's estimate, on the ground that it did not comply with a requirement of the policy that "plans and specifications shall be sworn to by the party," is too late if raised for the first time at the trial. Breckenridge v. American Cent. Ins. Section ten. Agent. Nos. 35, 35a, 64, Co., 4 West. Rep. 565; 87 Mo. 62. 259, 322. 4. Cross references. Subd. I. Other insurance. Nos. 224, 226, 229, 232, 233, 238, 242, 244, 245, 247, 252, 255, 259. Section thirteen. Mortgagor and mort- Section eighteen. Payment of loss. No. gagee, etc. Nos. 31, 162. Section sixteen. 40. V. CERTIFICATE. General rules. When sufficient. Insured not bound. As affected by distance. Evidence and procedure in action. Other special cases. Cross references. cedent to right to sustain action. Compliance is not shown by best efforts to procure it. Johnson v. Phoenix Ins. Co., 112 Mass. 49; Cammell v. Beaver and Toronto Ins. Co., 39 Up. Can. Q. B. 1; Home Ins. Co. v. Duke, 43 Ind. 418; Herkins v. Provincial Ins. Co., 3 Russell & C. 176 (N. S.); Borden v. Provincial Ins. Co., 2 Pugsley & B. 381 (N. B.) 4.- Policy provided that proofs should be furnished within thirty days, and that assured should also produce a certificate under the hand and seal of the chief of the Fire Department, etc.; held, that the -- 1. General rules. Printed proposals limitation of the thirty days does not referred to by the policy required the in-apply to the certificate which must be sured to procure a certificate touching furnished within a reasonable time. Badthe loss, signed by the minister, church ger v. Glens Falls Ins. Co., 49 Wis. 389. wardens, and some respectable house 5.- Language in relation to certificate holders of the parish. The insured ob- is open to the construction that the certained the certificate of several house-tificate may be signed by the nearest holders, and alleged that the minister notary or by the nearest magistrate. and wardens wrongfully refused to sign Craighton v. Agricultural Ins. Co., 39 it. Held, that the printed proposals were Hun, 319 (N. Y.) to be deemed part of the policy, and that compliance with the requirement of a certificate signed by the minister and wardens, was a condition precedent; and it made no difference whether they refused to sign wrongfully or rightfully; though in this case, in point of fact, the refusal was rightful. Worsley v. Wood, 6 Durnf. and East, 710 (Eng.); Id., 2 H. Black. 574 (Eng.) Also, Oldman v. Berwicke, 2 H. Black. 577, note, (Eng.); Routledge v. Burrel, 1 H. Black. 254 (Eng.) 6.A provision in a policy of insurance that the insured shall procure a certificate from the nearest magistrate, notary, or other officer respecting the loss, is not invalid, but must be complied with. The authorities reviewed. *Kelly v. Sun Fire Office, 141 Pa. 10; 28 W. N. C. 269; 48 Phila. Leg. Int. 344; 21 Atl. Rep. 447; 20 Ins. L. J. 407. 7.- The dictum in Universal Ins. Co. v. Block, 109 Pa. 535; 15 Ins. L. J. 219; 16 Id. 649; 1 Cent. Rep. 554; and Davis Shoe Co. v. Ins. Co., 138 Pa. 73, as to illegality 2.- Where condition of policy required, of a clause providing for certificate from in the event of loss and before payment a fire marshal or other public officer, disthereof, a certificate of a magistrate or approved; but effect of a refusal by such notary public, importing that they are officer not decided. Id. In Badger v. acquainted with the character and cir-Glens Falls Ins. Co., 49 Wis. 389, certificumstances of the assured, and do know cate of Chief of Fire Department was reor verily believe that they have really quired and furnished. The legality of and by misfortune, without fraud, sus- the condition does not appear to have tained loss by fire to the amount therein been discussed or decided. mentioned, etc.; held, that such certifi- 8. When sufficient. Where the concate was a condition precedent to a re-dition in policy required that the magiscovery of any loss, and if a certificate be trate should state in his certificate that procured, in which a knowledge and belief he is "acquainted with the character and as to the "amount" of loss is omitted, it circumstances of the person or persons inis insufficient. Scott v. Phoenix Assur-sured, and that having investigated the ance Co., 1 Stuart, 354 (Low. Can.) circumstances in relation to such loss, 3.- When policy provides for the pro- does know or verily believe that he, she duction of a magistrate's certificate be- or they really, and by misfortune, and fore loss is payable, it is a condition pre- without fraud or evil practice, hath or |