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Other Special Cases.

bunal named, but to one or more persons without notice, under Michigan Circuit to be mutually chosen, it was revocable Court Rule 104. *Morley v. Liverpool & by either party, and was not sufficient to L. & G. Ins. Co., 85 Mich. 210; 20 Ins. L. oust the jurisdiction of the proper court. | J. 577; 48 N. W. Rep. 502. Commercial Union Assur. Co. v. Hocking, 16 Ins. L. J. 567, 583; 6 Cent. Rep. 915; 115 Pa. 407. See No. 64.

114.- An assured is bound, in the absence of fraud or mistake, by the appraisal of arbitrators which he adopted 110. When, without formal proofs, under oath in submitting his proofs of the adjustment of a loss is made depend-loss, especially where he had at the same ent upon the award of appraisers to time an appraisal of his own ex parte whom the amount is submitted, the com- appraisers. Id.

pany is liable for the loss thus ascer- 115.- A provision in a fire policy for tained, though by the terms of the policy the arbitration of differences as to the it is not liable for a greater sum than two-amount of loss or damage, and making thirds of the actual value of the building the award final, is not unlawful on the burned. *Snowden v. Kittanning Ins. Co., 122 Pa. 502.

110a.- An insurance company is not entitled to a stay of assured's proceedings by action, pending an arbitration under the Ontario Act, unless it admits liability or willingness to abide by the result. Hughes v. London Assur. Co., 4 Ont. 293 (Can.); and see McInnes v. Western Assur. Co., 5 Ont. Pr. 242.

111.- Where the question as to the amount of the loss awarded by arbitrators was in issue, and the jury found such amount to be greater than the amount of the policy-held, that the court was authorized to render judgment for the amount of the policy. Imperial F. Ins. Co. v. Kiernan, 83 Ky. 469.

ground that it is an attempt to oust the courts of jurisdiction; nor is it necessary that the arbitration should be conducted in accordance with McClel. (Fla.) Dig. p. 105, et seq., as the submission does not come within the arbitraments provided for therein. *Hanover F. Ins. Co. v. Lewis, 10 So. Rep. 297; 21 Ins. L. J. 316; 28 Fla. 209.

116.- A clause in a fire insurance policy, that any differences arising under it shall be referred to arbitration, though not signed by the insured, is a submission to arbitration within the English Arbitration Act of 1889, §§ 27, 4, defining submission as a written agreement to submit present or future differences to arbitration, and giving power to stay any legal proceedings commenced by any party to the submission against any other party thereto. *Baker V. Yorkshire F. & L. Assur. Co., L. R. [1892] 1 Q. B. 144 (Eng.)

112. The jurisdiction of a circuit court of the United States, in an action to set aside an award against insurance companies for the loss of insured property, where the insurance by each com- 117.- Refusal of the insured to subpany was for more than $2,000, is not de-mit to arbitration a difference concernfeated by the fact that the award was ing specific articles, under a provision less than the amount of the total insurance, and that therefore the interest of some of the companies might be less than $2,000 each, where it is not shown that there was any pro rata clause in the policy, as the insured might select certain companies and collect of each the full amount of the policy, in the absence of such a clause. *Hartford F. Ins. Co. v.praiser of some of the goods damaged by Bonner Mercantile Co., 11 L. R. A. 623; 20 Ins. L. J. 232; 44 Fed. Rep. 151.

of the policy for submission of all differences, will not bar his action for the loss upon other articles, where he abandons all claim for such specific articles, in the absence of anything in the policy to that effect. *Pioneer Mfg. Co. v. Phœnix Assur. Co., 14 S. E. Rep. 731; 110 N. C. 176. 118.- A purchase by an insurance ap

fire, for their cost price, such sum to be paid to the companies and added to the 113.- The absence of any submission award as if the goods had been a total and award by arbitrators as a condition loss, is not so opposed to public policy precedent to bringing suit upon a policy that it will, on appeal, be declared void, containing a provision therefore is prov- the objection not having been raised beable in defense under the general issue low. *Goodman v. Cohen, 43 N. Y. S.

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Rep. 680; 21 Ins. L. J. 424; 30 N. East. Section fifteen.
Rep. 399; 132 N. Y. 205.

119. Appraisers appointed, under a policy of fire insurance, to determine the amount of the loss thereon, are arbitrators under the provisions of N. Y. Code Civ. Proc., 2,374. *Bradshaw v. Agricultural Ins. Co., 42 N. Y. S. Rep. 79; 16 N. Y. Supp. 639.

120.-- An appraisal by arbitrators in pursuance of the conditions of a policy of insurance is not subject to the requirements of N. Y. Code Civ. Proc., § 2,367, relating to arbitrations under that Code. *Enright v. Montauk F. Ins. Co., 40 N. Y. S. Rep. 642; 15 N. Y. Supp. 893.

120a. Cross references.

Section two.

Subd. III. Statement or proofs of los8.
Nos.92, 127, 274 et seq., 326.
Section sixteen.

30.

Subd. II. Books of account, etc. No.

Section eighteen. Payment of loss. No.
38, 41.
No.

Section twenty-one. Limitation.
25a.

Section twenty-four. Waiver. Nos. 42a,
44, 72, 72a.

STATUTORY PROVISIONS.

121. Massachusetts. As to selection

Subd. I. Measure of damage. Nos. of referee to settle differences between 24, 72, 77.

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insurer and insured. Acts of Mass., 1891, ch. 291, § 1.

122.-Waiver of right to arbitration. Laws of Mass., 1888, ch. 151, § 1.

123. Vermont. Award by appraisers

Subd. I. Other insurance. No. 237. cannot be made a condition precedent to

Subd. X. Assignment. No. 107.

Section ten. Agent. No. 146.

right to maintain an action. R. L. Vt. 1880, § 3,626.

SECTION XVIII.

This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.

New York Standard Form. New in phraseology and arrangement.

1. PAYMENT OF LOSS.

General rules.

Condition precedent.

policy," such conditions referred to be-
come a part of the contract. Kensington
National Bank v. Yerkes, 86 Pa. 227.
3.— The sixty days is given to a com-

When the sixty days commences to pany for the purpose of ascertaining and

run.

determining whether, admitting the loss

Action may be sustained before ex- or the sufficiency of the notice and proof

piration of sixty days.

Waiver.

Compromise or adjustment.

Adjustment as affected by fraud.

Recovery back of losses paid.

Interest.

Other special cases.
Cross references.
Statutory provisions.

1. General rules. The delay of sixty days to which a company is entitled after notice and proofs, is a substantial right secured by contract, not merely to enable it to prepare to pay, but also to investigate the circumstances under which loss occurred, with a view of determining whether or not the loss is of such a character as involves an obligation to pay at all. A general averment that plaintiff has complied with all the conditions on his part to be performed, does not show that the time has passed, and that loss is due and payable. Doyle v. Phonix Ins. Co., 44 Cal. 264.

2.- When policy recites that payment is to be made sixty days after notice proof and adjustment of the loss "in conformity with the conditions annexed to this

thereof, it is bound to or will pay the claim of assured. Spare v. Home Mutual Ins. Co., 13 Ins. L. J. 280; 19 Fed. Rep. 14.

4. Condition precedent. A stipulation, "that the assured was not entitled to recover or sue for a loss until affidavit and proper certificate of loss are produced,” is a condition precedent to the right of action by the assured. Columbian Ins. Co. v. Lawrence, 10 Pet. 507 (U. S.); and see 2 Id. 25.

5.- On a policy providing that the loss shall be paid within sixty days after notice and proof thereof, according to the conditions annexed to the policy, which require such proof to include a statement of the interest of the assured in the property, the assured, if he omits to insert such a statement in his proof of loss, cannot maintain an action unless the omission is waived by the officers of the company. Shawmut Sugar Refining Co. v. People's Mut. Fire Ins. Co., 12 Gray, 535 (Mass.)

6.- Where a policy of insurance provides that the "loss or damage shall be paid within sixty days after due notice and proof thereof, in conformity to the

When the Sixty Days Commences to Run.

conditions annexed to this policy," no are conditions to be complied with by action can be maintained thereon until the notice is given, and the required proof is furnished. Davis v. Davis, 49 Me. 282.

the assured before he has any legal claim against the company for loss; and in such case all the conditions must be substantially, if not strictly, complied with, or no recovery can be had. *Weidert v. State

242 (Ore.); *Johnson v. Dakota F. & M. Ins. Co., 45 N. W. Rep. 799; 1 N. D. 167.

7.- Where a policy of insurance contains certain provisions in case of loss un-Ins. Co., 19 Ins. L. J. 740; 24 Pac. Rep. der it, as to notice to the company, proof of loss, etc., by the assured, and that any fraud, or attempt at fraud, or false 13. Under an insurance policy proswearing on the part of the assured, shall viding that a loss shall not be payable cause a forfeiture of all claim under it, until sixty days after proof of loss, an they must be substantially complied with action cannot be maintained before the before the claim becomes payable, and expiration of that period, unless the comunless waived by the insurer, are condi-pany has waived the provision by an absotions precedent to the right of the as- lute refusal to pay the loss. *Cascade F. sured to maintain an action. Gies v. & M. Ins. Co. v. Journal Pub. Co., 1 Wash. Bechtner, 12 Minn. 279. 452; 20 Ins. L. J. 395; 25 Pac. Rep. 331.

8.- Performance of conditions precedent to loss being due and payable, must be alleged in complaint or declaration. Rockford Ins. Co. v. Nelson, 65 Ill. 415; Home Ins. Co. v. Duke, 43 Ind. 418; Home Ins. Co. v. Lindsay, 26 Ohio St. 348; Edgerly v. Farmers' Ins. Co., 43 Iowa, 587; Dolbier v. Agricultural Ins. Co., 67 Me. 180; Carberry v. German Ins. Co., 51 Wis. 605; Perry v. Phoenix Ins. Co., 12 Rep. 584; 8 Fed. Rep. 643.

14. When the sixty days commences to run. It seems that where objections are made by the insurers to the preliminary proofs of loss, the sixty days at the end of which the loss by stipulation of the policy is payable are not to be deemed to commence to run until after a reasonable time for the insured to examine the objections, and if amendments were required, to make and serve them. Mayor, etc. of New York v. Hamilton Fire Ins. Co., 10 Bosw. 537; aff'd, 39 N. Y. 45.

15. It seems, the company was to have sixty days after notice and proofs of loss within which to pay; proofs were furnished to the local agent, were never objected to as insufficient; an attempt

8a. A condition that payment of the loss need not be made until sixty days after the same should have been ascertained and proved held to be a condition precedent, and plea good, that at the commencement of the action the alleged loss had not been ascertained and proved. | afterwards to make a fuller statement Johnston v. Western Assur. Co., 4 Tupper, 281 (Can.)

9.- Proofs must be furnished sixty days before suit. Harris v. Protection Ins. Co., 1 Wright, 548 (Ohio).

10. Assured must comply with conditions precedent to loss becoming due and payable. Fire Insurance Association v. Miller Bros., 14 Ins. L. J. 56; 2 Tex. Ct. App. Civ. Cas. 332.

does not invalidate the first, and the sixty days begin from the time the proofs are furnished. Ins. Co. of N. A. v. McDowell, 50 Ill. 120.

16. The limit of sixty days prescribed for loss becoming due runs from the time of furnishing proof originally, and not from time of a subsequent examination of assured had at the instance of the company. Huchberger v. Home Ins. Co., 5 Biss. 106 (U. S. Cir.)

11. Suit on a policy of insurance, which is payable sixty days after due 17.- When company has examined the notice and proof of loss, cannot be main-assured under oath, and thus waived fortained if begun before the expiration of the sixty days. German-American Ins. Co. v. Hocking, 6 Cent. Rep. 911; 115 Pa.

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mal proofs, the sixty days prescribed to run before the loss shall become due and payable, commences from the time of the delivery of such examination to the agent of the company. Badger v. Phonix Ins. Co., 49 Wis. 396.

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Action May be Sustained Before Expiration of Sixty Days.

proofs are furnished, and company's ex- immediately. Etna Ins. Co. v. Maguire, pression of intention to resist the claim 51 Ill. 342. does not operate as a waiver. Hatton v. Provincial Ins. Co., 7 Up. Can. C. P. 555; Rice v. Id., 7 Id. 548.

19.- Provision for payment in sixty days after due notice and proof of loss refers to the proofs required within thirty days, and not to other proof required for establishment of claim. Clover v. Greenwich Ins. Co., 2 Cent. Rep. 873; 101 N. Y. 277; 15 Ins. L. J. 214.

20. The sixty days run from the time the "statement" commonly called proof of loss is furnished, without reference to what the insured might or might not be required to do subsequently. Id.

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25.- If company denies liability suit may be brought within prescribed time, but not if it has merely neglected on its part to act in the matter. Donahue v. Windsor Co. Mut. Ins. Co., 13 Ins. L. J. 116; 56 Vt. 374.

26. In action upon a parol contract it is not necessary to plead the terms of the policy, and in absence of any agreement for allowance of time before money can be demanded, it will be assumed that right of action accrues at once. So held on company's demurrer to complaint. Ganser v. Fireman's Fund Ins. Co., 15 Ins. L. J. 555; 34 Minn. 372.

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27. A denial of all liability except for a specified sum and offer to pay such sum by the company, operates as a waiver of the sixty day limitation, and insured may sue at once. Commercial Fire Ins. Co. v. Allen, 16 Ins. L. J. 641; 80 Ala. 571.

21.- Proofs of loss are not furnished under an insurance policy, so as to start running the sixty days at the expiration of which it is payable by its terms, until the magistrate's certificate required to accompany such proofs is also furnished. *McNally v. Phoenix Ins. Co., 42 N. Y. S. 28. An action cannot be brought on Rep. 21; 16 N. Y. Supp. 696, rev'd, Feb.1893. the policy against the company within 22. Action may be sustained before the time specified in the policy, unless expiration of sixty days. Where policy there has been an unqualified refusal on provides that "payment will be made in the part of the company to pay the loss. sixty days after loss, proof and adjust- *Cascade etc. Ins. Co. v. Journal Publishment thereof;" an action will lie withining Co., 1 Wash. 452; 20 Ins. L. J. 395; 25 the sixty days, if the insurers refuse to Pac. Rep. 331. adjust the loss. Phillips v. Protection Ins. Co., 14 Mo. 220; Indiana Mut. Fire Ins. Co. v. Rutledge, 7 Ind. 25.

23.- A policy provided for the payment of losses within sixty days after the same should be ascertained and proved. A loss was proved and demand of payment made within the time limited. The loss was admitted by the insurance company, which offered payment of what it assumed to be the amount of its liability, but payment of the full amount of the insurance was refused. Held, that the condition as to the time of payment was waived, and that the sum for which the insurers were bound became due and recoverable with interest from the date of the demand. Baltimore Fire Ins. Co. v. Loney, 20 Md. 20.

29.- Under the Iowa statute which provides that no action on a policy of insurance "shall be begun within ninety days after notice of the loss has been given" the period prescribed can not be shortened by company's denial of liability and absolute refusal to pay. Quinn v. Capital Ins. Co., 16 Ins. L. J. 980; 71 Iowa, 615; 33 N. W. Rep. 130; Vore v. Hawkeye Ins. Co., 76 Iowa, 548; 41 N. W. Rep. 309.

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30. And an action commenced before the expiration of the ninety days cannot be maintained, although the policy provides that the loss shall be payable in sixty days, and the statute is not pleaded, as a statute of limitations must be. *Taylor v. Merchants' & B. Ins. Co., 49 N. W. Rep. 994; 21 Ins. L. J. 117 (Iowa).

31. An insurance company which, 24. A clause giving the company sixty being fully advised of the facts and cirdays in which to pay after proof of loss, cumstances surrounding the loss, denies applies only when they agree to pay or all liability on the policy, thereby waives are undecided about paying; but not a time limitation in its favor, and gives when they peremptorily refuse to pay the the insured the right to sue at once. loss, in which case suit may be brought | *German Ins. Co. v. Gibson, 53 Ark. 494;

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