This is seldom made in fire policies, and perhaps never made with the purpose and effect of valuation in marine policies. Whether a loss be total or partial, the insurers are bound to pay so much of the sum insured as will indemnify the insured, and no more. (s) Where personal chattels are insured, of which the value is uncertain, as for example, works of art, it is not uncommon to agree and express what shall be held to be their value in case of loss; and such agreement is of course binding. (t)

The value which the insurers on goods pay for, is their value at the time of loss; and it is a common practice to determine this value by a sale at auction of such part of the goods as remains uninjured. But the insurers must have notice, and due precautions must be taken, to make the auction a fair measure of their value. (u)

It is quite certain that the profits which the insured sustains

(r) Tate v. Citizens Ins. Co. 13 Gray, 79.

(rr) Kelly v. Worcester, etc. Ins. Co. 97 Mass. 284.

(rs) Same case.

(s) Niblo v. North American Ins. Co. 1 Sandf. 551.

(t) The parties may make a valued policy on any subject, if they see fit.

Harris v. Eagle Fire Co. 5 Johns. 368. See Laurent v. Chatham Ins. Co. 1 Hall, 41; Wallace v. Ins. Co. 4 La. 289; Millandon v. Western Ins. Co. 9 id. 32, and cases infra, p. *455, n. (d).

(u) Hoffman v. Western Ins. Co. 1 La. An. 216.

1 Nor does an authority to take one kind necessarily authorize the taking of all kinds of risks. Smith v. State Ins. Co. 58 la. 487.

2 The policy in such a case does not attach, although an application is made for a license immediately after the unlawful business is begun. Johnson v. Union Ins. Co. 127 Mass. 555.

by the interruption of his business caused by the fire, are not * taken into consideration in assessing the damages; (v) unless the terms of the insurance expressly cover them. And generally it may be said, that if a building be burned, the damages are measured by its actual value, without any consideration of external circumstances, which might upon some contingency increase or diminish that value. (w)

As insurers against fire always endeavor to be certain, that they do not insure upon any building more than the building is worth, the question of value seldom arises in case of a total loss. If there be a partial loss, the insurers usually have by the policy, and frequently exercise, the right of repairing the building; and they must do this as to style, work, and materials, in conformity with the original character of the house. It is common in practice for them to estimate the cost of repairs, and offer that sum to the insured. If he refuses this, they may make the repairs. If the money is tendered unconditionally, he may take it, and still bring his action, and recover whatever more he may prove to be his loss. (ww)

If the building insured is entirely destroyed and then rebuilt, the insured is entitled to indemnity for his actual loss, and although there is no rule analogous to that which prevails in marine insurance, of deducting one-third new for old, still the jury may make a deduction from the value of the new materials, so as to give the insured only complete indemnity. (x)

If insurers elect to repair a building, and do so, and the cost of repair is less than the amount they insure, they remain liable for the balance during the time for which the policy attaches; (y) and if they elect to repair a building injured, and competent authorities forbid this, whether on the ground that the building would then be in a dangerous condition, or for other sufficient reason, the insurers lose their election, and are then liable to pay for the loss. (z) Repairs must be made in a * rea sonable time, and what is a reasonable time is a question

(v) Niblo v. N. A. Ins. Co. 1 Sandf. 551.

(w) Laurent v. Chatham Ins. Co. 1 Hall, 41.

(ww) See ante, p. *448.

(x) Brinley v. National Ins. Co. 11 Met. 195.

(y) Trull v. Roxbory Ins. Co. 3 Cush. 263. See N. H. Ins. Co. v. Rand, 4 Foster, for the jury; (a) and under a policy allowing the insurers to "make good the damage by repairs," the insured "to contribute one-fourth of the expense." it was held, that if the insurers, intending to comply with this provision in good faith, made repairs of substantial benefit, though not fully making good the loss, the measure of the insured's damages is the difference between the value of the building as repaired, and what it would have been if fully repaired, deducting one-fourth of the value of the repairs to the estate, and not one-fourth of the cost. (b) Where insurers had reserved a right to replace articles destroyed, and the insured refused to permit them to examine and inventory the goods that they might judge what it was expedient for them to do, relief was refused the insurers in equity. (c)

428. The insured will also be liable for assessments for losses after the destruction of his building by fire, during the whole term of the policy. N. H. Ins. Co. v. Rand, 4 Foster, 428; Swamscot Machine Co. v. Partridge, 5 id. 369.

(z) Brown v. Royal Ins. Co. London Jurist, 1859, p. 1255, 8 Am. Law Reg. 235.

Valuation often enters into policies against fire effected by mutual insurance companies, for a different purpose. Their charters forbid them to insure for more than a certain proportion of the value of buildings; and for this purpose a valuation is made in the policy; and, unless it be set aside for fraud, it is conclusive upon both parties, for most purposes. (d) If upon a certain valuation in a policy the insurers insure more than the proportion which their charter permits them to insure, the insured only recovers the legal proportion; and he cannot recover more by proof that the property was undervalued; and that a fair valuation would have authorized the whole amount insured. (e) l A by-law of a company prohibiting an insurance that exceeds two-thirds the estimated value of the property, has been held to be directory only, and not a condition of the contract. (f)

(a) Hawkins v. Hamilton Ins. Co. 5 Gray, 432.

(b) Parker v. Eagle Ins. Co. 9 Gray, 152.

(c) N. T. Ins. Co. v. Delavan, 8 Paige, 419.

(d) Borden v. Hingham Ins. Co. 18 Pick. 523; Fuller v. Boston Ins. Co. 4 Met. 206; Cane v. Com. Ins. Co. 8 Johns.

229; Coshman v. N. W. Ins. Co. 34 Maine, 487; Phillips v. Merrimack Ins. Co. 10 Cush. 350; Nichols v. Fayette Ins. Co. 1 Allen, 69.

(e) Holmes v. Charleston Ins. Co. 10 Met. 211.

(f) Cumberland Valley Plot Co. v. Schell, 39 Penn. State, 31.

1 See Bardwell v. Conway Ins. Co. 118 Mass. 465.