Policies frequently contain express provisions as to notice of loss, and proof, and adjustment; and there must be a substantial compliance with all these requirements, (b) 1 and such a compliance is sufficient. (c) 2 If the notice or preliminary proofs are imperfect or informal, all objection may be waived by the insurers; and they will be held to have made this waiver by any act which authorized the insured to believe, that the insurers were satisfied with the proof they had received, and desired nothing more. (d) 3
(b) Worsley v. Wood, 6 T. R. 710, 2 H. Bl. 574; Mason v. Harvey, 8 Exch. 819, 20 Eng. L. & Eq. 541; Columbia Ins. Co. v. Lawrence, 10 Pet. 513. It will be no legal justification of an omission to procure the certificate, that the persons from whom it was to be obtained wrongfully refused to give it. Worsley v. Wood, supra; Leadbetter v. AEtna Ins. Co. 13 Maine, 265. In determining the continuity of the magistrate to the place of the fire, whose certificate is required, the place of his business will be regarded, and a nice calculation of distances will not be made. Turley v. North American Ins. Co. 25 Wend. 874.
(c) Norton v. Rensselaer Ins. Co. 7 Cow. 645; N. Y. Bowery Ins. Co. v. N. Y. Ins. Co. 17 Wend. 359; Sexton v. Montgomery Co. Ins. Co. 9 Barb. 191. It is not necessary to state the nature of his interest in the account of the loss. Gilbert v. N. A. Ins. Co. 23 Wend. 43. The notice may be oral, unless required to be in writing. Curry v. Commonwealth Ins. Co. 10 Pick. 536. The manner of the loss, it has been held, need not be stated. Catlin v. Springfield Ins. Co. 1 Sumner, 434.
(d) See Bodle v. Chenango Co. Ins. Co. 2 Comst. 53; Heath v. Franklin Ins. Co. 1 Cush. 257; Clark v. New England Ins. Co. 6 id. 342; Underhill v. Agawam payment should be made to the mortgagee for a loss, the company, if claiming that it was not liable to the mortgagor or owner, might either be subrogated to the mortgagee's rights without affecting the latter's right to recover the whole of his claim, or might pay the mortgagee's claim and take an assignment, does not subject the mortgagee to conditions which before the assignment related to the mortgagor, but is an independent agreement with the mortgagee. Hastings v. Westchester Ins. Co. 73 N. Y. 141; Hartford Ins. Co. v. Olcott, 97 Ill. 439; Chamberlain v. N. H. Ins. Co. 55 N. H. 249.
1 Johnson v. Phoenix Ins. Co. 112 Mass. 49; Edgerly v. Fanner's Ins. Co. 48 la. 644. Innocent mistakes in the preliminary proofs will not bind the assured, Conn. Ins. Co. v. Schwenk, 94 U. S. 593; McMaster v. Ins. Co. of N. A. 55 N. Y. 222; Mut. Ins. Co. v. Newton, 22 Wall. 32; Maher v. Hibernia Ins. Co. 67 N. Y. 283; American Ins. Co. v. Day, 10 Vroom, 89; if the insurers are not thereby surprised, Waldeck v. Springfield F. & M. Ins. Co. 53 Wis. 129. That notice from the real party in interest, though not the assured, will be enough, see Watertown Ins. Co. v. Grover, etc Co. 41 Mich. 131. Where the nearest magistrate not concerned in the loss had suffered by the fire, and the assured is suspected of setting it, the former cannot give a certificate. Wright v. Hartford Ins. Co. 36 Wis. 522. Posting the proofs within the time limited was said to be sufficient in Badger v. Glens Falls Ins. Co. 49 Wis. 389. See O'Reilly v. Guardian Ins. Co. 60 N. Y. 169, that the filing the preliminary proof may be equivalent to the notice required, while the latter will not satisfy the former.
2 Killips v. Putnam Ins. Co. 28 Wis. 472.
3 Basch v. Humboldt Ins. Co. 6 Vroom, 429; Jones v. Mechanics' Ins. Co. 7 Vroom, 29; Hibernia Ins. Co. v. Meyer, 10 Vroom, 482; Mercantile Ins. Co. v. Holthaus, 43 Mich. 423: Planters' Ins. Co. v. Deford. 38 Md. 382: Tisdale v. Mut Ben. Ins. Co. 91
And a refusal to settle the claim in any way, (e) 1 or a distinct refusal on grounds other than the insufficiency of the notice, (f) 2 or a partial payment of the loss, (g) would be held to be a waiver of notice or preliminary proof, and an excuse for not furnishing it. * But a rule has been applied to some * of these cases, - that a distinct declaration that nothing is waived prevents a waiver, (h) and it might be held applicable to all of them. And the submission to arbitration by the assured, and an agent of the insurers, of the amount of a loss by fire, is not a waiver of a condition in a policy of insurance requiring a particular account of the loss. (i) If the preliminary proofs are once approved of, this approval cannot be withdrawn. (j) 4
Some policies against fire contain a provision that a suit under the policy will not be sustained unless it be commenced within a certain period from the loss. 5 One such policy, the period being
Ins. Co. id. 440; Priest v. Citizens Ins. Co. 3 Allen, 602; Sexton v. Montgomery Co. Ins. Co. 9 Barb. 191; Clark v. New England Ins. Co. 6 Cush. 342.
(e) Francis v. Ocean Ins. Co. 6 Cowen, 404; Tayloe v. Merchants Ins. Co. 9 How. 390; Allegro v. Maryland Ins. Co. 6 Harris & J. 408.
(f) Vos v. Robinson, 9 Johns. 192; AEtna Fire Ins. Co. v. Tyler, 16 Wend. 401; McMasters v. Westchester Co. Ins. Co. 25 id. 379; O'Neil v. Buffalo Ins. Co. 3 Comst. 122; Clark v. N. E. Ins. Co. 6
Cush. 342; Boynton v. Clinton Ins. Co. 16 Barb. 254; Franklin Ins. Co. v. Coates, 14 Md. 285; Firem. Ins. Co. v. Crandall, 33 Ala. 9.
(g) Westlake v. St. Lawrence Co. Ins. Co. 14 Barb. 206. But see Smith v. Haverhill Ins. Co. 1 Allen, 297.
(h) Edwards v. Baltimore Ins. Co. 3 Gill, 176. See Colombian Ins. Co. v. Lawrence, 2 Pet. 53.
(i) Pettengill v. Hinks, 9 Gray, 169.
(j) Atlantic Ins. Co. v. Wright, 22 Ill. 462.
U. S. 238; Mason v. Citizens Ins. Co. 10 W. Va. 572. See Brink v. Hanover Ins. Co. 70 N. Y. 593; s. c. 80 N. Y. 108; Beatty v. Lycoming Ins. Co. 66 Penn. St. 9; Devens v. Mechanics' etc. Co. 83 N. Y. 168.
1 Williamsburg Ins. Co. v. Cary, 83 Ill. 453; Harriman v. Queen Ins. Co. 49 Wis. 71; Aurora Ins. Co. v. Kranich, 36 Mich. 289; Roberts v. Cocke, 28 Gratt 207.
2 Eastern R. Co. v. Relief Ins. Co. 105 Mass. 570; State Ins. Co. v. Todd, 83 Penn. St. 272; Hibernia Ins. Co. v. O'Connor, 29 Mich. 241.
3 Examination of the assured on oath will have the effect of a waiver, Badger v, Phoenix Ins. Co. 49 Wis. 396; but material questions only need be answered, Titus v. Glens Falls Ins. Co. 81 N. Y. 410; Ins. Co. v. Weides, 14 Wall 375. Where loss occurred in the Chicago fire on October 8th or 9th, and notice and proof of loss were given on November 13th following, as the office of the company was destroyed, and the assured did not know where to find its officers, the delay was held reasonable. Knickerbocker Ins. Co. v. Gould, 80 Ill. 388.
4 If an insurer, after a loss and an opportunity to investigate, no fraud or deception being practised upon him, agrees to pay, and the insured to receive, a certain sum in full, recovery cannot be defeated by showing a breach of warranty in the policy, though unknown to the insurer at the time of such agreement. Stache v. St. Paul Ins. Co. 49 Wis. 89, citing Smith v. Glens Falls Ins. Co. 62 N. Y. 85.
5 And if the loss is payable at a certain time after proof, no action is maintainable before such time. Ins. Co. v. Weide, 14 Wall 375 ; Winnesheik Ins. Co. v. Schueller, 60 Ill. 465. Steen v. Niagara Fire Ins. Co. 89 N. Y. 315, decided that when the time for bringing an action is limited in the policy to a "term of twelve months next after the loss or damage shall occur," the limitation begins to run when the cause of action accrues, and not when the actual destruction occurred.
twelve months, was held valid. (jj) 1 In another, a period of sixty days and six months thereafter, was held valid. (jk)
A notice to an insurance company claiming for a total loss of a wooden dwelling-house, without mentioning the stone-work and bricks which were left unconsumed, is a sufficient compliance with a by-law which requires the insured, in case of partial loss, to state the amount of damage done, and the value of such parts as remain. (k)
In regard to the adjustment, perhaps the most important difference between fire policies and marine policies is this. Where there is a valuation in a marine policy, and insurance on only a part of that value, if there be a partial loss, the insurers pay only a proportionate part of the sum they insure; for the insured is considered as insuring himself for the other part. Thus, if the insurance be for $5,000 on a ship valued at $15,000, and a partial loss to the amount of $6,000, the insurers pay but $2,000; but under a fire policy insurers pay the whole amount lost by the fire, with no other limitation than that it shall not exceed the amount which they insure. (l)
It is a universal principle of the law of contracts, that every contract is avoided by material fraud. And if policies seek to strengthen or enlarge this rule, as by a provision that a policy shall be avoided by any false oath or affirmation of the insured, in respect to it, it would seem to be still a question for the jury, whether a material fraud was committed thereby; and only if there were, would they be instructed to render a verdict for the insurers. (m) 2 A tenant cannot require his landlord, who has insured the buildings, to rebuild or repair them from money received under the insurance; and it may be said to be a general rule, that no third parties have any equities in respect to the proceeds of policies of fire insurance, unless they be grounded upon a contract or a trust to that effect. (n) 1
(jj) Riddlesbarger v. Hartford Ins. Co. 7 Wallace, 386.
(jk) Mayor of New York v. Hamilton, etc. Ins. Co. 39 N. Y. 45. See also Keine v. Home, etc. Ins. Co. 42 Mo. 38.
(k) Wyman v. People's Ins. Co. 1 Allen. 301.
(l) Liscom v. Boston Ins. Co. 9 Met 211; Trull v. Roxbury Ins. Co. 3 Cush. 267.
(m) Woods v. Masterman, Ellis on Ins. 14; Levy v. Baillie, 7 Bing. 349.
1 Tasker v. Kenton Ins. Co. 58 N. H. 469. But a condition that differences should be decided by arbitration, and that no action could be maintained until after an award, nor unless brought within a year after the loss, was declared void, in Leach v. Republic Fire Ins. Co. 58 N. H. 245. See also Phoenix Ins. Co. v. Badger, 53 Wis. 283; Canfield v. Watertown Ins. Co. 55 Wis. 419.
2 Maher v. Hibernia Ins. Co. 67 N. Y 283; Beck v. Germania Ins. Co. 23 La, An. 510; Ins. Cos. v. Weide, 14 Wall. 375; Clark v. Phoenix Ins. Co. 36 Cal. 168. But a gross over-valuation of the assured's own property, though not made with intention to defraud, will avoid a policy conditioned that all fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture. Leach v. Republic Fire Ins. Co. 58 N. H. 245.
(n) Leeds v. Cheetham, 1 Simons, 146. See Brown v. Quilter, Ambler, 619.
1 A lessee, bound to rebuild in case of fire, has no claim to be reimbursed out of the lessor's insurance money. Ely v. Ely, 80 Ill. 532.