In striking contrast with the way in which courts have treated cases in which provisions are found in contracts of sale for the purpose of fixing the value of property by appraisement,1 is the attitude of the courts toward contracts of insurance which contain provisions for fixing the amount of loss by arbitration or appraisement.2 While such a provision is a condition precedent, so that the insured can not recover if he refuses to submit such question to arbitration,3 it is regarded either as not a condition precedent in the sense that the insurer can refuse to submit to such arbitration or appraisement and defeat recovery on the policy, or else such conduct on his part is held to amount to a waiver of such condition.4 Whichever theory is invoked, the insured may recover without appraisement or arbitration if the insurance company refuses to submit thereto,5 or if the insurance company, after submitting thereto, so acts as to prevent such arbitration or appraisement from being completed,6 In such cases the insured may maintain an action upon the policy and have the amount of loss determined by a jury.7 If the appraiser who is appointed by the insurance company withdraws, it is the duty of the insurance company to appoint another appraiser, and if the insurance company fails or refuses to do so, this is said to amount to a waiver of the provision for appraisement.8 The insured is not bound to submit to a new appraisement, but he may insist that the insurance company shall appoint an additional appraiser in place of the one who was appointed originally.9 Denial of all liability does not waive a provision for ascertaining the amount of loss by appraisement.10

22 Smith v. St. Philip's Church, 107 N. Y. 610, 14 N. E. 825.

23 Mutual Life Ins. Co. v. Stephens, 214 N. Y. 488, L. R. A. 1917C, 809, 108 N. E. 856.

1 See Sec. 2615.

2 See Sec. 721 et seq. 3 See Sec. 2614.

4 See notes 5 to 0, this section.

5 Western Assurance Co. v. Hall, 120 Ala. 547, 74 Am. St. Rep. 48, 24 So. 936; St. Paul Fire & Marine Ins. Co. v. Kirkpatrick, 129 Tenn. 56, 164 S. W. 1186.

6 Brock v. Dwelling House Ins. Co., 102 Mich. 583, 47 Am. St. Rep. 562, 26 L. R. A. 623, 61 N. W. 67; Fire Association v. Appel, 76 O. S. 1, 80 N. E. 952; Hifkerson v. German-American Ins. Co., 96 Tenn. 193, 32 L. R. A. 172, 33 S. W. 1041; Chapman v. Rockford Ins. Co., 89 Wis. 572, 28 L. R A. 403. 62 N. W. 422.

7 Brook v. Dwelling House Ins Co. 102 Mich. 583, 47 Am. St Rep 562. 26 L. R. A. 623, 61 N. W. 67; Fire Association v. Appel, 76 O S 1, 80 N. E. 952; Hickerson v. German-American

If a contract provides for determining by arbitration the damage caused by total breach of the contract, refusal to arbitrate does not defeat the right of the party who is not in default.11