F. Ins. Co. v. Deckard, 28 N. East. Rep. III. STATEMENT OR PROOFS OF 868 (Ind.) 98. The notice of loss under a policy of insurance, and the affidavit stating how the loss occurred, required by the Iowa statute, to "accompany" such notice, need not be attached together and delivered at the same time; but it is sufficient if both are delivered to the company within the time prescribed for giving notice. *Russell v. Fidelity F. Ins. Co., 50 N. W. Rep. 546 (Iowa). 99. Twelve days' delay in serving notice of loss, held, compliance with condition requiring service forthwith, insured having given verbal notice to the local agent immediately after the fire. *Capitol Ins. Co. v. Wallace, 21 Ins. L. J. 516; 29 Pac. Rep. 755; 48 Kans. 400. 100. Cross reference. Section sixteen. Subd. I. Examination. No. 16. LOSS. General rules. When sufficient. To what extent bound by proofs. As affecting time to sue. In case of parol contract. Evidence and procedure in action. Other special cases. 1. General rules. In case where the fire has not only consumed the goods insured, but all books and vouchers from which an account could be made, the insured is not required to do what would be vain and impossible, but only to such II. ORDER AND INVENTORY. performance of the conditions in regard 1. Order. When the value of the property is trifling in amount and there is no proof that its value could have been improved, there is nothing in the point that the assured failed to put the damaged property in the best possible order after the fire. Wright v. Hartford Fire Ins. Co., 36 Wis. 522. 2. Inventory. If, from the destruction of books and other papers, a person insured is unable to furnish a more specific statement, a policy requiring an inventory showing the quantity, quality, and cost of each article will be held complied with by an inventory giving the number of articles of each kind at an average price for each. People's F. Ins. Co. v. Pulver, 20 N. East. Rep. 18; 127 Ill. 246. 3.- Compliance with a requirement of an insurance policy that the assured shall | make a particular inventory of the goods after a fire is excused if the goods are so damaged as to render the making of the inventory not reasonably practicable. *Powers Dry Goods Co. v. Imperial F. Ins. Co., 21 Ins. L. J. 251; 51 N. W. Rep. 123 (Minn.) to proofs of the amount and extent of his loss as the nature of the case will admit. Jones v. Mechanics' Fire Ins. Co., 7 Vroom, 29 (N. J.) 2. A reformation of policy does not require assured to furnish new or further proofs of loss. Maher v. Hibernia Ins. Co., 67 N. Y. 283. 3.- Under a condition requiring assured to furnish a particular account of the loss, and if required to produce his books of account and other papers, vouchers and original or duplicate invoices, assured is bound to give all information and particulars reasonably required, etc., in his power to give. Goldsmith v. Gore District Fire Ins. Co., 27 Up. Can. C. P. 435. 4.- Substantial compliance with conditions in regard to notice of loss, proofs and adjustment, is all that is required. Willis v. Germania Ins. Co., 79 N. C. 285. 5.- A total loss does not mean an absolute extinction. The question is not whether all the parts and materials composing a building are absolutely or physically destroyed, but whether after the fire the thing insured still exists as a building. Williams v. Hartford Ins. Co., 54 Cal. 442. When Sufficient. - 7. Where the proof of loss is sufficiently specific, and so far complies with the conditions of the policy as to make it proper evidence to go to the jury, it is enough. *Erwin v. Springfield F. & M. Ins. Co., 24 Mo. App. 145. 8. The condition requiring a statement in proofs of loss as to other insurance does not require the affirmative statement that there was none other; that requiring a certificate from a magistrate, etc. does not call for a statement that he is not of kin, etc., but such must be the fact; that requiring a statement as to ownership of property and interest therein and time of fire should be specifically complied with unless waived by the insurer. Id. 12.- Proofs of loss are sufficiently furnished under a policy issued by two companies under a joint business name, by sending them to the secretary of the joint business, and his turning them over to the respective officers of the companies who have charge of losses, although the liability of the companies under the policy is several, and not joint, and the policy provides that proofs of loss shall be given to the companies. *Minnock v. Eureka F. & M. Ins. Co., 51 N. W. Rep. 367 (Mich.) 13.- Information asked for by letter by an insurer, relating to the proofs of loss furnished when supplied by letter, will be treated as supplementary to the proofs upon the particular subject to which they relate; and such proofs and correspondence are admissible in evidence to establish that the requirements of the policy as to furnishing proofs have been complied with before suit brought. *Hanover F. Ins. Co. v. Lewis, 10 So. Rep. 297; 21 Ins. L. J. 316; 28 Fla. 209. 14.- Notes on statement and proof of loss; waiver of; conditions to impede or hinder; where offer of proofs would be in vain; waiver and estoppel. See 7 L. R. A. 81; 1 Id. 216. 15. When sufficient. Where, in a policy of $1,000 on building, and $300 on 9. Not only notice, but proofs of loss, goods, requiring the usual "particular when required by a policy, must be given account of loss and damage," the assured if not waived. *American C. Ins. Co. made a general statement," that the v. Hathaway, 43 Kan. 399; 19 Ins. L. J. value of his goods at time of fire was 464; 23 Pac. Rep. 428; *Rockford Ins. Co. $1,495, without any specification because v. Seyferth, 29 Ill. App. 513; *Leigh v. of the loss of books and accounts; held, Springfield F. & M. Ins. Co., 37 Mo. App. that this clause requiring an account of 542; *Niagara Ins. Co. v. Lee, 73 Tex. loss must be liberally construed in favor of 641; 11 S. W. Rep. 1,024; McCormick v. the assured, and that the statement was, North British Ins. Co., 21 Pac. Rep. 14; therefore, under the circumstances, suffi78 Cal. 468; Mason v. Harvey, 8 Wel.cient. McLaughlin v. Washington County Hurl. & Gord. 819 (Eng.); Roper v. Lendon, 102 Eng. C. L. 825; 1 E. & E. 825. 10. When proofs furnished have been returned for correction to the insured who, after some delay, make the correction asked for, it cannot be said that they were complete as and when originally furnished. *Kelly v. Sun Fire Office, 141 Pa. 10; and see No. 96. Ins. Co., 23 Wend. 525 (N. Y.) 16.- Where an attempt was made by assured to comply with the contract of insurance, in reference to preliminary proofs, and afterwards the company, without notifying assured that his alidavit was insufficient, made an examination and pursued the inquiry to satisfy themselves, taking other affidavits, and placing them in the hands of their agent; held, that the finding of the jury that this 11.- The thirty days prescribed for exercise of option to rebuild commences to run from time the amended proofs are was a substantial compliance with the received. Id. terms of the contract, would not be set When Sufficient. aside. Sexton v. Montgomery County dition requiring a particular account of Mut. Ins. Co., 9 Barb. 191 (N. Y.) the loss; assured may refuse to sign a 17.- Where the assured, from loss of statement containing irrelevant matter; books and vouchers, could not furnish but if he offers to sign subsequently comthe "particular account' required by pany can not refuse to permit him to do conditions of the policy, a statement of so. O'Brien v. Ohio Ins. Co., 13 Ins. L. the gross amount lost, and circumstances J. 825; 52 Mich. 131. of the loss, under oath, was held suffi- 23. A provision that in case of loss cient. Norton v. Rensselaer & Saratoga | “the assured shall render to the company Ins. Co., 7 Cow. 645 (N. Y.); Bumstead v. a particular account of said loss" does Dividend Mut. Ins. Co., 12 N. Y. 81. not require anything more than a state18. The failure of the insured to ment of the aggregate value of the propspecify any of the goods insured, with erty destroyed, unless a more particular particularity," as required by the policy, account is demanded at the time. Miller in their proofs of loss, if caused by their v. Hartford F. Ins. Co., 70 Iowa, 704. inability to do so in consequence of the total destruction of such goods, does not preclude them from recovering therefor. Hoffman v. Etna Fire Ins. Co., 1 Robt. 501; 19 Abb. 325; aff'd, 32 N. Y. 405. 19.- A coal breaker was insured under a valued policy; immediately after its destruction by fire, the insured wrote to the company, stating that his "coal breaker burnt down this morning," giving the number of his policy, and the amount of his insurance; held, that such a statement of loss, though in the preliminary notice, was substantially a particular statement, and a compliance with the condition requiring it. Lycoming County Mut. Ins. Co. v. Schollenberger, 44 Pa. 259. 24. A provision that in case of loss the assured must furnish a statement of other insurance and copies of all policies does not mean that he must furnish a copy of the policy issued by that company; nor does it require a literally exact copy of other policies, but it is sufficiently complied with by furnishing copies which are substantially correct, and which contain no errors which might prejudice the company receiving them; nor does it require him to furnish copies of applications on which other policies were issued, and which were made parts of the policies and indorsed thereon. Id. 25. It is a sufficient compliance with a condition in a policy of fire insurance requiring the insured to state in his proofs of loss "* when and how the fire 20. Service of copies of notice and proofs on reinsuring company, and re-originated," to declare that "the said fire tention without objection, sufficient compliance with conditions in regard to them. Cashau v. Northwestern Nat. Ins. Co., 5 Biss. 476 (U. S. Cir.) did not originate by any act, design, or procurement on his part, or in consequence of any fraud or evil practice done or suffered by him; and that nothing has been done, by or with his consent or privity, to violate the conditions of insurance, or render void the policy aforesaid.” Howard Ins. Co. v. Hocking, 6 Cent. Rep. 918; 115 Pa. 415. 21.- When insured property is an organ and is totally destroyed, assured is not required, under a demand for a further schedule after proofs are furnished, to furnish any further particulars; that the schedule required must be 26. When goods in two separate construed as meaning an inventory, and buildings are covered by one policy, and an inventory of a single article is made are made distinct subjects of insurance, by naming the article. If company has a proof of loss should state the damage to right to a full description of all the the goods in each building. Towne v. specifications of the organ under such Springfield F. & M. Ins. Co., 5 N. Eng. eircumstances, it does not become opera-Rep. 484; 145 Mass. 582; 15 N. East. Rep. tive by a mere demand for a schedule. | 112. Smith v. Commonwealth Ins. Co., 49 Wis. 322. 27.- A provision requiring a proof of loss to set forth "all other insurance in 22.- An examination under oath may detail" is satisfied by setting out a copy be a substantial compliance with the con- [of a description of property insured by When Not Sufficient. another policy, as stated therein. Id. loss signed by his own hand, verified by 28. When not sufficient. Where one his oath and by his books of account and of the conditions of a policy against fire, other vouchers." Greaves v. Niagara requires as a part of the preliminary proof | Dist. Mut. Fire Ins. Co., 25 Up. Can. Q. without which no recovery can be had, a B. 127; Carter v. Niagara District Ins. declaration under oath, "whether any, Co., 19 Up. Can. C. P. 143. and what, other insurance has been made on the same property," the insured will forfeit his right to recover by failing to comply with this condition. Battaille v. Merchants' Ins. Co., 3 Rob. 384 (La.) 29.- Where the conditions of a policy required that assured should state in his preliminary proofs "the value of the property lost and the nature and value of his interest therein," and until this was done the loss would not be payable; held, that the rendition of such an account was an essential prerequisite to the right of recovery; and a statement that the property was entirely destroyed, and a valuation given in the original application was not a compliance with the condition. Wellcome v. People's Equitable Mut. Fire Ins. Co., 2 Gray, 480 (Mass.) 30. By a condition in a policy, the insured were bound, in case of loss, to give to the secretary a particular account of such loss or damage. An account was sent to the secretary, setting out the names of the partners, the number of their policy and amount insured therein, the value of their stock in the store, as estimated from their books, reciting insurances in two companies, and giving an account of an entire undivided loss, but without stating the amount of the loss or damage upon the policy of the defendant, nor that the loss was upon goods insured under that policy, nor in what way that loss was ascertained. Held, not such a particular account of the loss and damage as was required by the policy. Lycoming County Ins. Co. v. Updegraff, 40 Pa. 311. 31. The plaintiff's affidavit, stating generally the value of the goods saved and lost; a certificate of the nearest magistrate, as to his inquiry into and belief of the fire being accidental; and of two merchants; and a book containing a statement of the goods lost, made partly from invoices and partly from recollection, but not verified by his account books or other vouchers, or by his affidavit, is not a “particular account of the - 32. Nor is plaintiff's statement that the property consisting of general merchandise in his store was totally destroyed, as were also his books of account, invoices and papers, and that the value, as near as ascertainable, is $3,000. Affidavit attached. The evidence, at trial, showing he had the means of giving a more particular account, is no fulfilment of the condition, which must be so construed as to require enough information to enable the company to form a judgment. Banting v. Niagara District Mut. Fire Ass. Co., 25 Up. Can. Q. B. 431. 33.- Plaintiff's affidavit, stating the occupancy of the premises, the whole value of the goods destroyed, without any particulars, and attaching some accounts of goods sold to him, showing, however, only the charges of "goods per invoice,” not showing which were burnt and which not, is not "a particular account signed with his own hand, verified by his oath, also, if required, by his books of account and other proper vouchers." Mulvey v. Gore Dist. Mut. Fire Ass., 25 Up. Can. Q. B. 424. 34.- A condition that in case of loss the assured should state on oath whether any and what other insurance or encumbrance has been made, refers to the period since the insurance; and a mortgage made one month before the date of the policy need not be mentioned, but the notice saying nothing about encumbrances at all; held, the plaintiff must be nonsuited, as it was required of him to state that the premises were or were not incumbered, and his silence was a breach of a condition precedent. Markle v. Niagara District Mut. Fire Ins. Co., 28 Up. Can. Q. B. 525. 35.- Policy required the assured in case of loss to furnish a particular account of it, which should include a statement of the true nature of his title at the time of the fire. In his proofs of loss assured stated that he was "bona fide owner of the property, holding same by possession for or during the last 35 years by myself Who May Make Proofs. dition of the policy in regard to proofs. Stickney v. Niagara District Mut. Ins. Co., 23 Up. Can. C. P. 372. 39.- Policy covered $1,400 on dry goods and clothing; $400 on groceries and crockery; $200 on boots and shoes. Assured in his proofs of loss gave total of stock on hand at a certain date, of merchandise purchased since that date, merchandise and my father." The property in question was a barn. It appeared that at the time of making such statement the assured knew that a recovery in ejectment had been actually had against him some weeks before the fire by one having a better legal title. Held, that the barn was to be considered as a part of the freehold; that such statement was not a compliance with the condition, and the plaintiff could | sales during the same period, goods saved not recover; and, held, that he could not as per inventory, which being objected to, subsequently maintain an action upon held, that assured was bound to give a the theory that the barn was a chattel. particular account of his loss under each Sherboneau v. Beaver Mutual Fire Ins. item insured, and the furnishing of a genCo., 30 Up. Can. Q. B. 472. eral account covering all under the head or name of stock or merchandise was not a compliance with the condition. Lindsay v. Lancashire Fire Ins. Co., 34 Up. Can. Q. B. 440. 36.- "A particular account of such loss" was to be given to the secretary within thirty days. It was given thus: "Furniture, $367; groceries, $233," merely reiterating the policy. Held, every one may be presumed to remember some particulars, though his books may be lost, and that this was no statement at all; and the sufficiency of a statement is not for the jury. That the case of Ins. Co. v. Updegraff, 43 Pa. 350, only decides that when some particularity is given, the jury may decide whether it is as particular as it should have been. Beatty v. Lycoming Co. Mut. Ins. Co., 66 Pa. 9. 37.— Preliminary proofs, which were required to give actual cash value at the time of fire, consisted of the detailed statement of a builder as to the cost of rebuilding. Held, clearly defective. A letter by the secretary to the assured, although denying responsibility on other grounds, yet stating that the preliminary proofs were wholly unsatisfactory, and reserving all objections of every kind to a recovery, is no waiver of the defect in the proofs of loss. Citizens' Fire Ins. Co. v. Doll, 35 Md. 89. 40.- A general statement without items or details does not answer in absence of waiver by company or of inability to furnish same by the assured; and if question arises solely upon the papers in evidence as proofs, their sufficiency is for the court and not for the jury. Gauche v. London and Lancashire Ins. Co., 11 Ins. L. J. 361; 10 Fed. Rep. 347. 41. Who may make proofs. Where a policy contains a condition that "all persons insured by the company shall deliver a particular account of loss or damage, signed by their own hands, containing," &c., &c., a notice by a third person for the insured, such person being interested in the policy, but not an agent of the insured, is not sufficient. Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176. 42. The notice of loss was required to be given forthwith, and as soon thereafter as possible the preliminary proofs, and assured was to submit to an examination, if required. The loss occurred June 38.- Assured produced a book into 20th, 1861, the assured being and continuwhich a number of invoices were pasted ing absent on account of his health. On and a small diary in which numerous July 12th, 1861, plaintiff, a creditor of memoranda were made. From these he assured, began suit against him, attachmade an extract saying his total stock was ing the company. Defense, no notice nor so much and his sales so much, and as he proof of loss. The plaintiff filed the had stock on hand previous to the date assured's deposition in February, 1867, in of these invoices amounting to about the case. Held, the claimant is not held $2,400 and only $600 being saved in a to these requirements with technical damaged state, therefore his loss strictness, either as to time or manner. amounted to so much. Held, that plaint- That although assured has not taken the iff had not given a particular and total steps to render his claim payable, it is statement of his loss as required by con- nevertheless a valuable right attachable |