are open to correction. Commercial Ins. Marine & Fire Ins. Co., 8 Rob. 442 (La.) 2.- Where policy required production 18. The refusal of assured to subinit of "vouchers, and an examination under to an examination under oath, under a oath," and assured fails to comply with clause that the loss shall not be payable such requisition without excuse or justiuntil such examination, is not a forfeit- fication, he cannot recover; but his failure, but the loss is not payable until iture is to some extent a question of fact is done. Weide v. Germania Ins. Co., 1 and intention. If it was to gain time Dillon, 441 (U. S. Cir.) and lessen the chances of detecting fraud, it would be fatal; but if to save the assured or his family from an epidemic it would not. Phillips v. Protection Ins. Co., 14 Mo. 220. 19.- Personal examination of assured is no part of the proofs of loss, so as to extend period for the loss becoming due and payable. Winneshiek Ins. Co. v. Schueller, 60 Ill. 465. 3. Full compliance with condition is precedent to loss being due and payable and is indispensable to right of action un 20.— There can be no objection by the company to an examination of the insured upon the ground that it is not sat-less compliance is impossible or is waived isfactory. Myers v. Council Bluffs Ins. Co., 16 Ins. L. J. 885; 72 Iowa, 176. 21. A policy of insurance requiring the assured to submit to an examination under oath gives him the right to have the examination in his attorney's presence. *Thomas v. Burlington Ins. Co., 47 Mo. App. 169. 22. Cross references. Section fifteen. by the company. O'Brien v. Commercial Fire Ins. Co., 63 N. Y. 108. 4.- Assured must comply with condition requiring him to furnish bills of purchase or duplicates, unless waived, or performance has become impossible, without fault of his own. Farmers' Fire Ins. Co. v. Mispelhorn, 50 Md. 180. 5.- Demand having been made that the assured furnish duplicate bills of pur Subd. III. Statement or proofs of loss. chase, the burden of proof rests upon him Nos. 16, 22, 44, 147, 152, 282 et seq. to show that it was not possible for him to comply with the terms of the condition by the use of all reasonable means within his power. Mispelhorn v. Farmers' Fire Ins. Co., 53 Md. 473. 6. Assured is not bound to do an impossible thing, and if it can be shown that without any fault or fraud compliance with demand to furnish bills and invoices is rendered impossible, recovery may be had without performing the condition; a finding by jury that assured has done all that was possible is conclusive. Eggleston v. Council Bluffs Ins. Co., 14 Ins. L. J. 365; 65 Iowa, 308. 7. Demand. Demand for bills and invoices to be of force must fix a time. *Jones v. Howard Ins. Co., 117 N. Y. 103. 8.- A demand for production of books, 26 N. B. 371. 1. General rules. The fact of the etc., for examination, must be made within conditions of a policy of insurance re-a reasonable time and at a reasonable quiring that any claim for a loss shall be place. Hammond v. Citizens' Ins. Co., sustained, if required, by the books of account and other vouchers of the assured, creates no implied warranty on the part of the latter to keep books of account, and to be ready to exhibit them when called on. Wightman v. Western 66 9. Destruction of originals. One condition of the policy required assured to verify their loss by their books of account and other proper vouchers." This additional proof had been demanded by Safe Clause. the company after the fire, but all of the the policy it was agreed that the assured assured's "books of account and vouch- should produce, if required by the assurers" having been destroyed by the fire, ers, his books of account and other the assured was unable to comply with vouchers in support of his claim, and pertheir demand. The company then re- mit extracts and copies to be made, and quired assured to duplicate their invoices, he was required by the insurers to proand get the pass-books of their journey- duce his bills of purchases; and he told men, in which were entered the boots them it was impossible to do so; that he and shoes and other articles manufact- had only found a few bills, and afterured by the assured, and there was evi- wards he found others, but did not prodence tending to show that assured prom-duce any to the insurers; and the insurers ised to get them, but it was never done. requested him to furnish further stateThe jury were instructed that if they ments, and the bills of purchases, or were satisfied that all the assured's duplicates of them, but under the advice "books of account and vouchers were of the counsel he declined; held, that not burnt up, they were not bound to pro- having complied with the agreement in cure such documents as were called for the policy, he could not recover. Jube v. by the company; that such invoices and Brooklyn Fire Ins. Co., 28 Barb. 412 (N. Y.) pass-books belonged to the merchants and journeymen with whom assured had dealings, and were not in assured's possession or control, and were not the "books and other proper vouchers" required to be produced by the conditions of the policy. On a motion for a new trial, this instruction to the jury was held to be correct. Mechanics' Fire Ins. Co. v. Nichols, 1 Harrison, 410 (N. J.) 14.- When a condition requires the assured to produce certified copies of lost invoices, and evidence is given tending to show that the plaintiff was requested to produce duplicates of the invoices, the bill of exceptions not showing whether such request was made before or after commencement of suit, or whether the plaintiff neglected to comply or not, the court will not find error in a refusal to 10. It is a sufficient excuse for non-charge that, if the jury believe the request production of books that they were destroyed by the fire. Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315. 11.— When, by destruction of books and vouchers by the fire, it is impossible for the assured to furnish them as required by the condition, it is sufficient to furnish an affidavit of value of property lost. Perry v. Niagara District Mut. Ins. Co., 21 L. C. Jurist, 257 (Can.) for duplicates was made before commencement of suit, and compliance neglected, the plaintiff's right of action never accrued the condition is broken. Ins. Cos. v. Weides, 14 Wallace, 375 (U. S.) 15.- Policy required assured to produce certified copies of all bills and invoices, the originals of which were lost. Jury were charged in effect that assured showed sufficient compliance by proof that he had furnished such copies as he had in his possession, and that it was for them to say whether he had given all the 12.- Where a policy provided that in case of loss the assured should submit to the company his books, invoices, and vouchers, for examination, and also fur-information he had, and that if he had nish duplicate invoices for the same pur- done so, he was entitled to recover. Held, pose; but the books and original invoices error. That assured was bound to furwere destroyed by fire, and the assured nish, in such a case, certified copies from made diligent but unavailing effort to the sellers of the goods, unless it is imposprocure duplicate invoices for the com- sible to obtain them, or condition is pany's use, held, than an action on the waived. O'Brien v. Commercial Fire policy could not be defeated on account| Ins. Co., 63 N. Y. 108; rev'g, 6 Jones & Sp. 4. of a failure to comply with this requirement, though the assured did not communicate to the company his inability to procure the duplicates. Miller v. Hartford F. Ins. Co., 70 Iowa, 704. 16. Safe clause. Where a merchant was accustomed to keep his store open in the evening, and, even after it was locked, to admit customers who knocked, while the business of the day was being closed 13. Copies. Where by the terms of up, the fact that the front door was Waiver. 21. If an assured kept the books and inventory as required by the "iron safe clause" in the policy, and after the fire produced them to the agent of the company who was authorized to settle losses, and thereafter the books and inventory were lost or destroyed without the fault or negligence of the assured, the failure to produce them will not prevent a recovery. Id. locked, and that the books were not in can verify the accounts furnished them the safe, because the clerk had not fin- and thereby ascertain their accuracy. ished writing up the day's business in *Pelican Ins. Co. v. Wilkerson, 13 S. W. them, when a fire occurred, about 9 o'clock | Rep. 1,103; 53 Ark. 353. in the evening, will not avoid a policy which contains a covenant that books showing a record of the business shall be kept, and shall be "locked in a fireproof safe at night," and at all times when the store is not actually open for business. Jones v. Southern Ins. Co., 38 Fed. Rep. 19. 17. A fire insurance company waives a requirement in its policy that the books and invoices of the insured shall be kept in a fireproof safe, where, after the building is burned, on being informed of the facts, it requires the insured to procure duplicate invoices in place of those burned, to be used in adjusting the loss, the invoices and books burned having been kept only in a wooden desk. Brown v. State Ins. Co., 74 Iowa, 428; 7 Am. St. Rep. 495; 38 N. W. Rep. 135. 18.- Failure to comply with the requirements of an insurance policy as to keeping of books and inventory in safe etc., without fraud, does not avoid the policy, unless loss is thereby caused, or unless the provisions on the subject constitute a warranty. Goddard v. East Texas F. Ins. Co., 67 Tex. 69; 1 S. W. Rep. 906. 19.- An insurance policy is not invalidated by a failure to comply with a warranty that the insured will keep his books at night in a fireproof safe, or in some secure place not exposed to fire, where the solicitor at the time of preparing the application was told by insured that he had no safe, and would keep the books in his dwelling, and in reply to a question as to whether he would agree to keep the books in an iron safe at night, answered, 'Keep them in dwelling at night." *Sprott v. New Orleans Ins. Co., 13 S. W. Rep. 799; 53 Ark. 215. 66 22.- A stipulation signed by the agent of the defendant and attached to the policy by him with a common pin, regarding the proper and safe keeping of books of purchases and sales and inventories, may be waived by him. *Niagara F. Ins. Co. v. Brown, 24 Ill. App. 224; aff'd, 12 West. Rep. 815; 123 Ill. 356; 15 N. East. Rep. 166. 23.- A country store is open for business within the meaning of an insurance policy requiring the books to be kept locked in a safe at all times when not so open, notwithstanding the only occupant, who was engaged in entering the day's transactions in the books and in waiting on such customers as knocked at the door, which was kept locked, is temporarily absent from the store intending to return and finish making such entries. *Sun Mut. Ins. Co. v. Jones, 15 S. W. Rep. 1,034; 54 Ark. 376. 24. Waiver. If a company having a good defense to a claim, nevertheless requests the assured to produce books and the property which escaped damage, and he complies at considerable expense, there is no waiver of the defense, if the contract provided for the taking of such steps, and assured would have taken them anyway. *McCormick v. Orient Ins. Co., 86 Cal. 260. 25.- An objection by an insurance company that insured did not submit himself, his books, papers, etc., for exam 20.- The "iron safe clause" in an insurance policy, that the assured agrees to keep a set of books showing a record of all business transacted, including pur-ination as required by the policy, is chases and sales for cash and credit, is not complied with where the books kept by the assured do not convey any correct or satisfactory idea of the amount of goods on hand and destroyed by the fire, and there is nothing from which the insurers flimsey where the company had his books and ample opportunity to examine them and him, and actually used the same proofs in collecting a claim for reinsurance against another company. *McKee v. Susquehanna Mut. F. Ins. Co., 26 Evidence and Procedure Cross References. W. N. C. 263; 19 Atl. Rep. 1,067; 19 Ins. L. J. 1,040; 47 Phila. Leg. Int. 415; 135 Pa. 544. 26. Evidence and procedure. Testimony of a witness was received in connection with books of his firm produced in court, containing entries of sales made to assured, though witness had no personal knowledge of the sales of the goods charged, and did not himself make the entries, it being shown that the bills had been rendered to the assured and paid by him, and that duplicates could have been obtained if assured had applied for them. Held, admissible upon issue as to ability of assured to furnish duplicate bills as required under condition in the policy. Mispelhorn v. Farmers' Fire Ins. Co., 9 Ins. L. J. 411; 53 Md. 473. 27.- Books of account are not evidence of themselves, and entitled to no further weight than the proof of witnesses examined as to their accuracy will justify. Newmark v. Lond. & Liv. Ins. Co., 30 Mo. 160. 28.- Waiver must be pleaded. Mueller v. Putnam Fire Ins. Co., 45 Mo. 84. 29. Question for jury. If there is any question as to the inability of the assured to procure and furnish duplicate bills of purchase, it is error to take the case from the jury. Farmers' Fire Ins. Co. v. Mispelhorn, 50 Md. 180. to sign a paper calling upon the purchasers to duplicate the bills he had bought of them, but assured refused to sign it; held, that this refusal to do so did not prevent recovery. Franklin Ins. Co. v. Culver, 6 Ind. 137. 32.-Insurance was £1,000 upon clothes and ready-made clothing. The 10th condition of policy, among other matters of preliminary proofs, required the production of "books of account and other proper vouchers," and that until this was done, the loss should not be payable. The company had required certain invoices, which the plaintiffs refused to produce, though it was in their power to do so; but the jury being satisfied on other evidence that the loss had been actually sustained, found in favor of the plaintiff. Held, that not having complied with the condition in the policy, the plaintiffs could not recover, and a new trial was granted. Cinqu Mars v. Equitable Ins. Co., 15 Up. Can. Q. B. 143. See also same case and like decision in the suit on another policy. 15 Up. Can. Q. B. 246. 33.- Where notice requires production of books after the proofs called for by same notice are furnished, if there is no obligation on part of assured to furnish proofs as demanded, the non-production of the books cannot be construed as a refusal to produce them. Keeney v. Home Ins. Co., 71 N. Y. 396. 34. Cross references. Section four. Subd. V. Fraud and false swearing. Nos. 50, 107, 120. Section five. Subd. I. Other insurance. No. 256. Subd. V. Interest of insured. No. 30. It is a question for the jury whether conditions of an insurance policy requiring an examination of the insured and her books and an appraisal of the loss were waived by delay on the part of the company to demand the same, and the taking part by its agent in an adjustment of the loss, upon which the books were examined and the amount of loss and damage practically agreed upon. * Robertson v. New Hampshire Ins. Co., 16 N. Y. Supp. 842; 42 N. Y. S. Rep. 452. 31. Other special cases. After a loss, the assured gave to the secretary of the company a list of the names from whom he had purchased his goods, and subsequently the secretary requested assured 73, 91. 163. Section nine. Warranty. Nos. 82, 106. Subd. III. Statement or proofs of loss. Nos. 1, 3. Limitation. Nos. Section twenty-one. SECTION XVII. In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire. New York Standard Form. New in phraseology and arrangement. I. APPRAISAL. General rules. When inoperative. Condition precedent. When not a condition precedent. his right of action, unless clearly made a condition precedent to the existence of such right. Liv., L. & G. Ins. Co. v. Creighton, 51 Ga. 95. 3.- Submission to and award by appraisers is not binding unless made so by agreement. Patterson v. Triumph Ins. Must be disagreement as to amount. Co., 64 Me. 500. Partner may bind absent partner. Proceedings on appraisal. Validity of award. Award subject to policy. Award as evidence on a trial. Other special cases. 1. General rules. The change in the language of the condition would seem to render inapplicable the opinion in Reed v. Washington Fire & M. Ins. Co., 14 Ins. L. J. 465; 138 Mass. 572. 2.- Condition providing for arbitration cannot operate to deprive assured of 4. Assured cannot be relieved from award of arbitrators, even although he was induced by a mistaken assertion of company's agent in regard to condition in policy to consent to arbitration, he having the opportunity of examining the policy before signing the submission. Wheeler v. Watertown Fire Ins. Co., 10 Ins. L. J. 354; 131 Mass. 1. 5.- Arbitration may extend the time of payment beyond the sixty days prescribed, but cannot shorten it. Cowan v. Phoenix Ins. Co., 78 Cal. 181; 18 Ins. L. J. 443. 6.- When submission to arbitrators is for appraisal of damages only, under fire insurance policy, a valid award, although evidence of damage in action on policy, will not support an action on award. Soars v. Home Ins. Co., 1 N. Eng. Rep. 534; 140 Mass. 343. 7. An invalid award by referees to assess damages on a loss, under a fire insurance policy, has no effect on the rights of the parties. Id. |