20 Ins. L. J. 248; 14 S. W. Rep. 672. 38.- A condition that a loss shall not 32.- Denial of liability and refusal to be payable until a certain period after pay operates as a waiver of the sixty complete proofs and adjustment thereof days' period prescribed before a loss be- is waived, if, without such proofs made, comes payable. Suit may be instituted the company object solely to the amount at once. Georgia Home Ins. Co. v. claimed, and agree with insured to the Jacobs, 56 Tex. 366. ascertainment of the damage by apprais

32a. And see Section Fifteen, State-ers and to pay the loss thus ascertained ment or Proofs of Loss, subdivision at once. *Snowden v. Kittanning Ins. as affecting time to sue." Page 512. Co., 122 Pa. 502.

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33. Waiver. An adjustment of a loss 39. An insurance company is not esmade with a knowledge of all the facts topped to claim the benefit of the Iowa amounts to a waiver of all the defenses statute preventing an action on a policy based on provisions in the policy. Levy within ninety days after notice of v. Peabody Ins. Co., 10 W. Va. 560. And loss, where it has done nothing inducing see Eagan v. Ætna Fire Ins. Co., 10 W. | plaintiff to bring his action too soon, or Va. 583; Smith v. Glens Falls Ins. Co., 62 to induce him to believe that it would N. Y. 85; Ill. Mut. Ins. Co. v. Archdea- not rely upon any or all defenses arising con, 82 Ill. 236. from the facts of the case by reason of the fact that the time for bringing a new action, as limited by the policy, has expired. Vore v. Hawkeye Ins. Co., 41 N. W. Rep. 309; 76 Iowa, 548.

34.- A denial of all liability and peremptory and absolute refusal to pay, operate as a waiver of the limitation clause. Upon such denial and refusal an action may be commenced at once. State Ins. Co. v. Maackens, 9 Vroom, 564 (N. J.); Williamsburg City Ins. Co. v. Cary, 83 Ill. 453.

40.- A waiver of plans and specifications does not operate to deprive the company of the period prescribed before suit can be commenced, as the information 34a.- Denial of liability operates as a might be otherwise obtained, or it might waiver of the limitation prescribed before exercise its option to rebuild. Suit comsuit can be brought and action may be menced before the expiration of sixty brought at once. Cobb v. Ins. Co. N. A., days after proofs as made are furnished, 11 Kans. 93; Farmers' Ins. Co. v. Ens- or after the making of amended proofs, minger, 12 Ins. L. J. 40; 12 W. N. C. as case may be, is premature. German9 (Pa.); Carlwitz v. Germania Ins. Co., 12 American Ins. Co. v. Hocking, 115 Pa. Ins. L. J. 127 (U. S. Cir.); Home Ins. Co. | 398; 6 Cent. Rep. 911. v. Gaddis, 10 Ins. L. J. 774 (Ky.)

41. When the adjuster and insured

35.- A vote by the directors of an in-seventy days after the fire enter into a surance company, indefinitely to postpone written contract to submit the question the subject of a loss, will be construed of the amount of the loss to appraisers, as a refusal to allow anything on account of it. Patrick v. Farmers' Ins. Co., 43 N. H. 621.

36. Signing by a secretary of an order for payment of the adjustment of a loss with knowledge of the facts constitutes a waiver of a forfeiture. Farmers' Mutual Ins. Co. v. Gargett, 42 Mich. 289. And see cases under compromise and adjustment. Infra. Nos. 43 et seq.

37.— When a company joins with others in an adjustment and promises to pay its allotted portion, and assured settles with the other companies on basis of such adjustment, the former company is estopped to deny its liability. Fishbeck v. Phoenix Ins. Co., 54 Cal. 422.

it operates as a waiver of the provision requiring that proofs must be furnished within sixty days. *Bishop v. Agricul tural Ins. Co., 130 N. Y. 488; aff'g, 30 N. Y. S. Rep. 600; 9 N. Y. Supp. 350.

42.- An action may be brought within sixty days after giving proofs of loss, under an insurance policy providing that no action shall be brought within such time, although the proofs have been actually furnished upon the ground of a previous waiver thereof. * Insurance Co. of N. A. v. Forwood, 13 Ky. L. Rep.

261.

43. Compromise or adjustment. Compromise and payment is a waiver of objection that premium has not been

Compromise or Adjustment.

paid and is a recognition of the policy as a valid contract; by acceptance assured is estopped from maintaining an action for the difference between such amount and the amount which would otherwise be due as adjusted and apportioned. Haight v. Kremer, 9 Phil. 50 (Pa.)

44.- A compromise agreement, like accord and satisfaction, in order to take away right of action on the original contract, must be an agreement which is substituted for the pre-existing obligation. It must bind both parties, so that suit may be maintained by either to enforce the same. Luce v. Springfield Ins. Co., 2 Ins. L. J. 443; 1 Flippin, 281 (U. S. Cir.); and see No. 33.

48. When adjuster, after agreeing with the assured upon the amount of the loss states that he will take the papers to the company at another place, and that the assured would hear about a discount in a few days, or that he would get his money in sixty days, and assured never hears from him or the company, it may be inferred that the action of the adjuster is made known to the company on his return, and from the evidence there is a right to infer that an actual adjustment was made and a recovery under a count alleging adjustment would be sustained on such proof. Stolle v. Etna Ins. Co., 10 W. Va. 546.

49. An action upon an adjustment itself does not lie. It is necessary to aver and prove that the company promised to pay the insured the amount of the adjustment. Such a promise is the gravamen of the action. Quarrier v. Peabody Ins. Co., 10 W. Va. 507.

50.- An adjustment is not evidence of value between any others than the parties to it. Bardwell v. Conway Ins. Co., 122 Mass. 90.

45. Policy insured $1,500, being divided as follows: "$500 on dwelling; $600 on barn; $400 on produce therein." Defendant's agent paid $400 for a loss by destruction of the produce and took a receipt from the assured in which he declared that he accepted the $400 as full satisfaction for the loss sustained on the policy, "cancelling $1,500 on said policy." Held, that there was no technical release, and the payment of a sum for a distinct loss formed no consideration for the discharge from liability in respect to the insurance on the barn, and the want of consideration for the discharge of that liability was a good answer to the claim that it was covered by terms of the re-taining an offer of compromise by a comceipt. Redfield v. Holland Purchase Ins. Co., 56 N. Y. 354.

51. A loss adjusted and paid becomes an accord with satisfaction, and when no fraud is claimed, is a bar to another action on the same claim. Untersinger v. Niagara Ins. Co., 10 Ins. L. J. 237.

51a. It seems to prevent a letter con

66

pany from being admissible in evidence it should contain a general statement that it was written without prejudice." Hartney v. North British Fire Ins. Co., 13 Ont. 581 (Can.)

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46.- When an adjustment is made in terms "subject to terms and conditions of the policies," the true construction is that it is subject to all the terms and con- 52. An adjustment of a loss at an ditions except such as are superseded by amount fixed by compromise, in writing the fact that the loss and damage have and containing the elements of a new and been fixed. An adjustment with such an independent contract, will sustain an agreement means simply that the com-action, and defenses which might have pany will pay the loss as fixed under the terms and conditions of the policy, if under them the plaintiff is entitled to payment. Whipple v. N. B. & M. Fire Ins. Co., 11 R. I. 139.

47.— An adjustment and agreement upon the amount of loss does not prevent the company from showing in a suit upon the policy that the conditions of the latter had been previously violated so as to discharge it from liability. Colonious v. Hibernia Fire Ins. Co., 3 Mo. App. 56.

been admissible in an action upon the policy are not available, in the absence of fraud or error which must be established with clearness and certainty by the company. Godchaux v. Merchant Mutual Ins. Co., 11 Ins. L. J. 698; 34 La. Ann. 235; and see No. 33.

Compromise or Adjustment.

Ins. Co. v. Barnett, 11 Ins. L. J. 104; 73 other terms and conditions of the insurMo. 364. ance contract is a reservation of the question of liability. Queen Ins. Co. v. Young, 86 Ala. 424; 5 So. Rep. 116.

54.- A party interested in the insurance can not ratify a settlement made by another party with the insurance com61.- An action brought, not upon inpany, receive part of the money, and surance policies, but upon an adjustment then subsequently repudiate the settle-under accepted proofs of loss as a basis, ment, at same time retaining its fruits. cannot be sustained where the defendant Forest City Ins. Co. v. Leach, 19 Bradwell, has paid the amount agreed on in the 151 (Ill.)

55.- An adjustment and apportionment of the loss, upon which proofs are made, and no objection being made to either, are competent and prima facie evidence of right to recover amount as so fixed and determined, and it seems a promise to pay may be implied although the company is not estopped from showing that the implied promise is without consideration. Fame Ins. Co. v. Norris, 18 Bradwell, 570 (Ill.)

adjustment, and received a surrender of the policies and a receipt in full, merely because of an alleged error in the settlement, caused by a mistake of both parties in supposing that another insurer was liable for a portion of the loss. Plaintiff, having made the adjustment a basis for his suit, cannot avoid the effect of defenses arising therefrom by alleging error in the settlement. *Saville v. Ætna Ins. Co., 3 L. R. A. 542; 8 Mont. 419; 20 Pac. Rep. 646.

56. An adjustment is not binding upon 62.- An executed adjustment of loss an assignee of the policy, who after ex-between insurer and insured must control pressing a desire to participate in it, was them and can be set aside only by an not permitted to do so; either party may action for that purpose alleging fraud or avail himself or itself of any defense, or mistake. Id. assert any right which may exist under 63.- An adjustment is not rendered the policy arising from facts not con- contingent by the fact that a party to it sidered when adjustment was made. An is subsequently to furnish formal evidence adjustment may be evidence of amount of his authority to act for a third party. due, but is not conclusive. Fire Associa- *Royal Ins. Co. v. Roodhouse, 25 Ill. App. tion v. Blum, 63 Tex. 282. 61.

57.- An adjustment in order to be 64. An adjustment of a loss on a binding must be made with full knowl-house insured for the benefit of the heirs, edge of all the facts material to the right and subsequently set off to the widow as of insured to recover, and can be impeached only for fraud or for mistake of such material fact. Remington et al. v. Westchester Fire Ins. Co., 12 Ins. L. J. 892; 14 R. I. 245.

58.- A compromise settlement of a loss under a fire insurance policy, freely entered into by the assured, should not be disturbed in the absence of fraud. *Phanix Ins. Co. v. Van Allen, 29 Ill. App. 149. 59.- Where, after a loss, the company claimed that it was not liable, and a compromise was agreed upon, the executor of the insured cannot have an action at law upon the policy as a subsisting obligation, so long as the compromise is not rescinded. Home Ins. Co. v. Howard, 10 West. Rep. 815; 111 Ind. 544; 13 N. East. Rep. 103.

60.- An agreement that an adjustment of a loss covered by an insurance policy shall be made "without reference to any

dower, cannot be avoided on the ground that the adjuster was misled by statements of the plaintiffs in reference to their legal obligation to rebuild. Id.

65. A settlement of a loss, whereby a discount was made and the policy agreed to be surrendered and canceled on immediate payment, estops the insured from recovering on said policy for a subsequent loss, though the surrender and payment were not made and receipt in full given until after the second loss. *King v. Etna Ins. Co., 36 Mo. App. 128; King v. North America Ins. Co., Id. 142.

66. Where a company after notice and receipt of proofs of loss compromised the claim therefor and promised insured to pay a sum certain, it cannot afterwards set up, as a defense to an action, to recover such sum, the insured's breach of conditions contained in the policy.

Adjustment as Affected by Fraud.

70.- Cross references to cases relating be impeached by reason of facts indicatto compromise or adjustment.

Subd. V. Fraud and false swearing. subsequently discovered that the assured Nos. 72, 147 et seq.

Section twenty-four. Waiver. Nos. 20, its agents, does not authorize such holder 31, 44, 125.

Recovery Back of Losses Paid

121 Ind. 121; 22 N. East. Rep. 875. 78. Recovery back of losses paid. An insurance company whose agent undertook to adjust the loss, knew there was a controversy concerning the identity of the property insured, and agreed with the insured to pay a sum certain in settlement of the latter's claim, cannot recover back the amount so paid on the ground that the loss was not covered by the policy. *Nebraska & I. Ins. Co. v. Segard, 19 Ins. L. J. 648; 45 N. W. Rep. 681; 29 Neb. 354.

79.- Violation of a condition of a policy of insurance is a good ground for the recovery of money paid by the insurer in ignorance of such violation. *Phoenix Ins. Co. v. Parsons, 41 N. Y. S. Rep. 505; 29 N. East. Rep. 87.

79a. Cross references. Section four.

from that time. Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141.

85. When there is an express promise to pay amount of adjustment, interest commences to run from its making. Home Ins. Co. v. Meyer, 93 Ill. 271.

86.- The right to interest was not lost or suspended during the continuation of the civil war. Portsmouth Ins. Co. v. Reynolds, 32 Grat. 613 (Va.)

87. Interest commences to run only from the expiration of the sixty days. Queen Insurance Co. v. Jefferson Ice Co., 15 Ins. L. J. 109; 64 Tex. 578.

88. Interest is not allowable on a partial loss under an insurance policy, where the sum is not liquidated, until demand has been made for its payment, although arbitration and limitation clauses and proofs of loss have been waived and a builder's certificate of the amount of loss

Subd. V. Fraud and false swearing. presented. *Hutchinson v. Liverpool & Nos. 147 et seq.

143.

L. & G. Ins. Co., 10 L. R. A. 558; 20 Ins. 80. Interest. In this case the prelim-L. J. 273; 26 N. East. Rep. 439; 153 Mass. inary proofs as to amount of loss were confessedly loose and indefinite, the books of account and other data for forming an estimate having been destroyed by fire; the court, therefore, refused to permit any interest to be calculated against the company on the amount of loss as found by the verdict of the jury. McLaughlin v. Washington County Mut. Ins. Co., 23 Wend. 525 (N. Y.)

81.- Insurance company cannot be made to pay interest after the sixty days stipulated for in the policy, if it has been prevented from so doing by trustee process. Oriental Bank v. Tremont Ins. Co., 4 Metc. 1 (Mass.)

89.- A provision in a fire policy that the amount of the loss shall be payable sixty days after furnishing proofs of loss entitles the assured to interest upon his recovery, after the expiration of sixty days from the furnishing of the proofs. *Hanover F. Ins. Co. v. Lewis, 10 So. Rep. 297; 21 Ins. L. J. 316; 28 Fla. 209.

90. Interest does not begin to run under a condition in a fire policy that it shall be paid sixty days after delivery of proofs of loss, where proofs have been waived, until the expiration of sixty days after the waiver. *East Texas F. Ins. Co. v. Brown, 82 Tex. 631; 18 S. W. Rep. 713.

91. Other special cases. An order upon the secretary of an insurance com

82. Interest begins to run sixty days after the furnishing of proofs, from time loss is payable. Field v. Ins. Co. N. A., 6 Biss. 121 (U. S. Cir.); s. P. Knicker-pany, payable at sight, drawn by its duly bocker Ins. Co. v. Gould, 80 Ill. 388.

83.- Where policy provides that loss shall be paid within sixty days after adjustment, and the company have used reasonable efforts to arrive at an adjustment, it is error to allow interest from sixty days after the loss. Interest can be allowed only from judicial demand. Gettwerth v. Teutonia Ins. Co., 29 La. Ann. 30. 84.- Where policy provides that loss is payable sixty days after due notice and proofs are furnished, interest becomes due

authorized agent, and given and received in full satisfaction for a loss under a policy, will operate as a payment thereof, before its presentation to the secretary. Spooner v. Rowland, 4 Allen, 485 (Mass.)

92. Under R. S. O., ch. 162, providing loss shall be payable in thirty days, etc., it seems that a stipulation in the policy making the period sixty days is inoperative. City of London Ins. Co. v. Smith, 15 Duval, 69 (Can. Sup.)

92a. Stipulation that no action should