Bumstead v. Dividend Mutual Insurance — 12 N.Y. 81

Majority

p. 81

Bumstead against The Dividend Mutual Insurance Company.

Headnote

Objections which might be obviated by evidence will not be considered on a review, where they were not made at the trial.

Conditions in a policy of insurance, that the insured in case of loss or damage shall, as a condition precedent to a recovery, within thirty days deliver to the insurer a particular account of the loss or damage, verified by his oath, and, if required, by his books and vouchers, together with an inventory of the property destroyed or damaged, giving the amount of the damage to each item, verified by oath, need not under all circumstances be literally complied with to entitle the insured to recover upon the policy.

Such conditions are to be construed as requiring only as full and accurate an inventory and statement as the party, without fraud or fault on his part, is able to furnish.

"Where his books, papers and all the means for making an accurate statement and inventory are consumed with the merchandise insured, a statement verified by oath, showing this fact and that the property covered by the policy and destroyed was at least of the value of a sum named, is a sufficient compliance with the conditions.

An insurance company which receives and acts upon notice and preliminary proofs of a loss without objecting to their form or time of service, and declines to pay the loss without placing the refusal upon any defect in the notice and proofs, waives any formal obiections as to them which existed.

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Action commenced in the supreme court, October 28th, 1850, on a policy of insurance issued by the defendants to the plaintiff. The place of trial was Rensselaer county, and the cause was referred and tried before a referee. On the, trial the plaintiff read in evidence a policy of insurance made by the defendants, dated the 18th of May, 1850, by which the defendants, a mutual insurance company doing business at Glen’s Falls, Warren county, agreed to insure the plaintiff against loss or damage by fire, to the amount of $1500, which might happen during two years to his stock of merchandise situate in a store at Troy. The policy contained a provision, that it was made and accepted subject to and in reference to the by-laws and conditions thereto annexed, and that the loss or damage which might occur should be estimated according to the true and actual value of the property when it should happen, and be paid within three months after due notice and proof thereof made by the insured, in conformity to the by-laws and conditions annexed to the policy. One of the by-laws annexed was as follows :

“ All persons insured in this company, and sustaining loss or damage by fire, are forthwith to give a written notice thereof to the secretary of the company, and within thirty days after said loss to deliver in a particular account of such loss or damage, signed with their own hands, and verified by their oath or affirmation, and also, if required, by their books of account and other proper vouchers. They shall also declare, on oath, whether any and what other insurance has been made on the same property, and if said claim is allowed, it shall be payable within ninety days thereafter.”

One of the conditions annexed required that, in case of loss, there should be forwarded to the secretary of the company a plain and unequivocal statement of several specific particulars, verified by affidavits. Among these particulars was the following; “An inventory of all property

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destroyed or damaged, giving the value in cash of the damage sustained to each item—whether a building or other property—the statement to be accompanied by the affidavit of two disinterested respectable persons, that they were acquainted with the premises and the claimant, and they believe the said inventory of loss to be no more than the actual cash value of the damages sustained by said claimant, and that they believe the occurrence of the fire to be purely accidental and without fraud, and that they are wholly uninterested in said claim.” The plaintiff proved that on the night of the 22d of June, 1850, a fire originated in a store adjacent to that occupied by him, which extended to and consumed the store in which 'he did business, and his stock of goods therein covered by the policy, which exceeded fifteen hundred dollars in value; that he had no invoice book or inventory of his goods, or other book showing or purporting to show their amount or character, and that his bills of purchase were destroyed by the fire, and that his only means of ascertaining the goods he lost was his recollection and that of witnesses. He further proved that on the first of July, 1850, the secretary of the company received by mail, from Mr. Bull, the attorney of the plaintiff, proofs of plaintiff’s loss, consisting of the affidavits of the plaintiff and of McCarty, a clerk in his employ prior to and at the time of the fire, and of a third person by the name of Lillie, accompanied by the certificate of a justice of the peace who resided at Troy, that the clerk and Lillie were men of integrity. The secretary, on the same day, wrote Mr. Bull, merely acknowledging the receipt of the proofs, and saying they would be presented to the board of directors for their action thereon. Thé affidavit of the plaintiff after stating the insurance of his stock of goods mentioned in the policy, situate as therein described, and how and when the fire originated, proceeded as follows; “ that the fire in said building spread with such rapidity that the entire block of buildings was consumed and with it the entire ' amount

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of property contained in said store, and partly covered by said policy of insurance in said Dividend Mutual Insurance Company, together with all his papers, inventories and books, except a small daily blotter or day sales book; that the said property was not covered by any other insurance thereon in any other company ; and he, this deponent, was the bona fide owner of the said goods, wares and merchandise covered by the said policy of insurance, and that no alteration had been made, or. occupation carried on in said store, which increased the hazard of said property since said insurance was effected. And this deponent further says, that the total amount of property destroyed by said fire, owned by him and in said store occupied by Mm, was at least two thousand dollars, and this deponent believes much more; but from the destruction of his books, papers, bills of purchase and inventories, he is unable particularly to set forth the same.”

The affidavit of the clerk stated that he was in the employ of the plaintiff when the fire occurred, and described its origin so far as he knew; that from the destruction of the bills of purchase, inventories and books of the plaintiff, he was unable to give the particulars of the loss of the goods, but that from his general knowledge of the articles in the store when the fire occurred, he believed and had no doubt that the fair cash value thereof exceeded two thousand dollars ; and that he had no interest in the plaintiff’s claim for loss, ' and believed the fire was without fraud, and accidental. The affidavit by Lillie was to the same effect as that of the clerk, he deriving his information and forming his opinion as to the value of the goods from being frequently in the store and observing the articles and quantity.

The secretary of the defendants testified that on the 7th or 8th of August, 1850, he received from Mr. Bull as attorney for the plaintiff a letter, which he produced and which was read in evidence. It stated that inclosed therewith were the additional proofs of loss required by the company, and that the plaintiff, and his assistants had been several days

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engaged in making the same, and requested information of the action of the company on the claim. The additional proofs received by the secretary with this letter were produced by him, and consisted of what purported to be a detailed inventory of the merchandise of the plaintiff destroyed by the fire, with the value of each article. The aggregate amount in value, as stated in the inventory, was $2870. Attached to the inventory was an affidavit, made by the plaintiff on the 7th of August, in which he stated that he had used his best exertions to ascertain the quantity of merchandise contained in the store at the time of the fire, and that he and McCarty his clerk, and one McMahon an assistant, had investigated with care and their best recollection the kind, number and quantity of merchandise of the plaintiff contained in the store and destroyed by the fire, and that he believed that the inventory contained the amount of loss very nearly, but that it actually exceeded the amount therein stated. Affidavits by McCarty and McMahon were also annexed, in which they respectively stated that they were in the employ of the plaintiff and well acquainted with the stock of merchandise at the time of the fire; that they assisted in making the inventory, had heard the affidavit of the plaintiff annexed thereto read, and believed it to be true. It appeared that the additional proofs were submitted to the board of directors of the company. On the 5th of September, 1850, the defendants hy their attorney wrote Mr. Bull, the plaintiff’s attorney, saying that the company had ascertained the facts in relation to the plaintiff’s loss, and had come to the conclusion that they were not legally liable to pay him his insurance, but offering to pay him $500 in full of his claim to save litigation, and stating that if this was not accepted they would avail themselves of any legal defence they could make. The foregoing was the substance of all the evidence given. At the close of the evidence, the counsel for the defendants moved that the plaintiff be non-suited on the grounds : (1.) That the plaintiff had not proved

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a compliance by him with the provisions of his policy and the conditions and by-laws annexed; (2.) That the proofs of loss were not furnished within the time required by the policy and conditions and by-laws forming part thereof; (3.) That the evidence showed that the preliminary proofs furnished to the company were not a compliance with the conditions and by-laws attached to the policy, that the defendants required additional proofs, and that these proofs were not furnished by the plaintiff within the time specified therefor in the conditions and by-laws; (4.) That the evidence did not sustain the allegation in the complaint, that the plaintiff had given the defendants due notice of his loss as required by the policy, and that there had been no waiver by the defendants of their right to insist upon such notice. The referee denied the motion and the counsel for the defendants excepted. He thereupon insisted that the defendants were entitled to a report in their favor upon the same grounds upon which a nonsuit had been asked.

The referee found, as matter of fact, that the value of the property insured, which was consumed, exceeded $1500; that notice of the loss, and preliminary proofs, were furnished to the defendants on or about the 29th day of June, 1850; that such proofs did not strictly give the particular account or the inventory of the property destroyed, in compliance with the requirements of said policy, but furnished sufficient reasons for not complying with su ch requisitions, and for those reasons was a sufficient compliance therewith ; that such proofs were laid before defendants’ board of directors, after the 1st July, 1850, and were received without objection, and after determining upon the matter the defendants notified the plaintiff that further preliminary proofs were desired by them; that a further and full inventory and account of such loss and damage sustained by plaintiff were procured to be made out by him, and the same were duly verified and furnished to the

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defendants, on or about the 7th August, in full compliance with the requirements of the defendants, showing a loss exceeding the amount of insurance named in the policy, and that the plaintiff requested to be informed of the action of the defendants upon the plaintiff’s claim for the insurance; that on or about the 5th September, 1850, and not before, the defendants notified the plaintiff that they did not consider themselves legally liable to pay the plaintiff’s insurance; but they did not show that they notified or informed him that they should rely upon the defence, that the notice of loss or preliminary proofs was defective or insufficient, or was not furnished in time. The referee ruled and decided as matter of law: (1.) That the notice of the loss sustained by the plaintiff by the fire, furnished by him to the defendants, was in time to comply with the requirements of the policy of insurance; (2.) That the preliminary proofs first furnished by the plaintiff to defendants were sufficient to answer the requirements of the policy, if not objected to by the defendants; (3.) That by requiring further preliminary proofs, the defendants waived the right to insist upon such defects or omissions, the same being supplied by the further or additional preliminary proofs furnished to them; (4.) That by not placing their r ej ection of the plaintiff’s claim upon the ground of the defects or insufficiency of the preliminary proofs, it appears that the defendants then intended to rely upon their defence on the merits, without any reference to such defects or insufficiency in the preliminary proofs, and under such circumstances strict preliminary proofs are not necessary. The referee directed judgment against the defendants for the amount insured, with interest and costs. The defendants duly excepted to the finding of the referee on the questions of fact and to his decisions of law. The judgment ordered by the referee was affirmed on appeal by the supreme court at general term in the 3d district. The defendants apnealed to this court.

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E. H. Rosekrans, for the appellants.

The referee erred in denying the motion for a nonsuit and in reporting in favor of the plaintiff. 1. Furnishing notice and proof of loss in conformity to the policy and by-laws, and conditions' annexed, was a condition precedent to plaintiff’s recovery. ( 3 Denio, 73 .) 2. The parties were at liberty to make such contract as they saw fit to make, and neither referee nor court has the right to alter the contract as made. (2 Barb. S. C. Rep., 270.) 3. Inevitable accident or loss of papers did not excuse plaintiff from the performance of the condition precedent. (Chit. on Cont., ed. 1844, 734, 5; 19 Wend., 501 , and cases cited; 3 Hill, 570 , 1.) 4. Excuse for non-performance does not sustain an averment of performance. (7 Barb. R., 169.) 5. The first proofs furnished were defective; 1st. In not stating the extent'of loss on property covered by the policy. They expressly stated that the property destroyed by the fire was only partly covered by the policy. 2d. In not containing an inventory of loss, item by item. 6. The first proofs were objected to for these defects. 7. The additional proofs required were not furnished by the plaintiff within the time required by the policy. The fire occurred 22d June, 1850; the additional proofs were furnished 7th or 8th August. 8. The time for furnishing proofs having elapsed when the second proofs were furnished, the' silence of the defendants or the letter of their attorney of a subsequent date could neither operate as a waiver, or estoppel in pais, of their right to insist upon the lapse of time as a defence. 9. The action was prematurely brought. Three months had not elapsed from the time due notice of loss and proof had been furnished.

N. Hill, Jr., for respondent.

I. The plaintiff was not bound to furnish the defendants

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within thirty days, &c., with a specification of each item of the property, but only with a particular account. This clause of a policy is always construed with great liberality in favor of the insured, and not so as to require what is impractical or absurd. (McLaughlin v. Wash. Ins. Co., 23 Wend. R., 525; Norton v. Rens. & S. Ins. Co., 7 Cowen's R., 645; Lawrence v. Ocean, &c., 11 Johns. R., 241, 259, 260; Barker v. Phœnix Ins. Co., 8 Johns. R., 317, 318; Catlin v. Spr. F. Ins. Co., 1 Sumn. R., 434: See Chitty on Contr., 75, 6th Am. ed., 1848.)

II. But if the preliminary proofs were not sufficiently minute, the provision requiring them was for the benefit of the defendants, and they might and did, by omitting to object, waive all right to insist on the defect. 1. They received the proofs first furnished without objection, and never apprised the plaintiff that they desired more minute information. (Clark v. N. E. I. Co., 6 Cush. R., 345, 6; Ætna Ins. Co. v. Tyler, 61 Wend. R., 401, 2; Bodle v. Chen. M. I. Co., 2 Comst. R., 53, 57, 8; 3 Sandf. Sup. Ct. R., 26, 42, per Sandford, J.; 6 Harr. & Johns., 408, 410, 412; O'Niel v. B. F. I. Co., 3 Comst. R., 128, 9 ; Underhill v. A. I. Co., 6 Cush. R., 445.) 2. If they had wished an inventory within the thirty days, they should have said so expressly, but this they never called for. (Bodle v. Chen. M. I. Co., 2 Comst. R., 57, 8; Clark v. N. E. Ins. Co., 6 Cush. R., 345, 6; O'Niel v. B. F. I. Co., 3 Comst. R., 128; and see cases under preceding subdivision.) 3. The call- for further proofs gave no notice that more minute information was wanted, nor did it amount to a rejection of the former ones on that ground. (Bodle v. Chen. M. I. Co., 2 Comst., 58; Clark v. N. E. I. Co., 6 Cush. R., 345; Ætna Ins. Co. v. Tyler, 61 Wend. R., 401, 2.) 4. Besides, it is not shown that the call was made known during the thirty days, so as to enable the plaintiff to comply within that- time. (Bodle v. Chen. M. I. Co., 2 Comst., 58; Clark v. N. E. I.

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Co., 6 Cush. R., 345; Ætna Ins. Co. v. Tyler, 16 Wend., 401 , 2.)

III. The further proofs delivered on the 7th of August, 1850, were intended to and did supply the defects, if any, in the former ones, and the objection that they were not furnished in time is unavailable. 1. If they were called for during the thirty days, which is not proved, there is nothing to show that they were not furnished at the day appointed by the call. 2. The act of receiving them without objection, after the thirty days, and the letter of the attorney, are evidence that this defect was waived, and so the referee has found. (Clark v. N. E. I. Co., 6 Cush., 345 ; 6 Harr. & Johns., 408, 410, 412, 413.)

IY. The defendants have never objected to the preliminary proofs first received on the specific grounds now taken. Even if they refused to pay for this reason, the fact was studiously concealed until the action was commenced. Their conduct would operate as a fraud on the plaintiff if the defence is upheld. (Clark v. N. E. I. Co., 6 Cush. R., 345; 6 Harr. & Johns., 408, 410, 412; O'Niel v. B. F. I. Co., 3 Comst. R., 128, 9.)

V. Besides, these proofs were not objected to, even at the trial, on any specific ground, nor in túne, so as to enable the plaintiff to obviate the alleged defect by showing an express waiver. (Bodle v. Chen., &c., 2 Comst. R., 57, 8; Trustees, &c., v. Cagger, 6 Barb. R., 581, 2; Lansing v. Wiswall, 5 Denio's R., 218.) The defendants did not object at the trial that a waiver could not be insisted on under the pleadings; and if they had, the objection was untenable. (Taunton Bank v. Richardson, 5 Pick., 436 ; Norton v. Lewis, 2 Conn. R., 478; Williams v. Mathews, 3 Cowen's R., 252.)

The objection that the suit was brought before the expiration of three months from the time when the corrected and more particular statement of the loss was furnished, and was therefore premature, was not taken upon the trial and consequently it cannot be made here. That time

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was for the benefit of the defendants and may have been waived by them, and this objection might have been obviated by evidence of such waiver, or some other evidence, had it been taken at the proper time. Objections of this character are considered waived unless taken upon the trial, where the adverse party may by evidence shape his case to meet and answer them, if such evidence is within his reach.

The points made by the defendants, upon the motion for a nonsuit, were in substance renewed and urged upon the final submission of the cause, and form the ground-work of the exceptions to the decisions and report of the referee, and although stated in the form of several distinct propositions, resolve themselves into two questions: first, as to the sufficiency of the notice and proof of loss as a compliance with the conditions annexed to the policy and the by-laws of the company; and secondly, if not a substantial compliance with such conditions and by-laws, whether the defendants had consented to receive and consider them as sufficient and thereby waived a more literal performance on the part of the plaintiff.

The plaintiff, as a condition precedent to his right to ' recover v^as, by the by-laws of the company, bound to give notice forthwith of his loss, and within thirty days deliver in a particular account of such loss or damage, signed with his own hand and verified by his oath or affirmation, and also, if required, by his books of account and other proper vouchers; and by the conditions annexed to the policy, he was bound to furnish an inventory of all property destroyed or damaged, giving the value in cash of the damage sustained to each item—whether a building or other property— verified by his affidavit. The conditions are reasonable, and for the benefit of the insurers, to enable them to decide upon their rights and the extent of their liability before they are called upon to pay ; and no liability attaches until they have been complied with by the insured. (Mann v. Harvey, 8 Exch. Rep., 819.)

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What shall be considered a performance, so as to entitle a party to insist upon payment of a loss within the policy, depends upon the true construction of the contract of the parties. A strict interpretation of the language employed would not unfrequently prevent a recovery against the company, as no exceptions are made to the requirement tc furnish the inventory and to produce the books of account and other vouchers. The inventory required is one strictly accurate, not approximating to accuracy, and made according to the best knowledge the party may have. Such a statement, although made out with all care and honesty, and really affording to the insurers all the information they could reasonably desire, would not be an inventory of the property destroyed within the literal meaning of the condition. So the non-production of the books and vouchers which had been destroyed by.the very fire against which the party had sought an indemnity would effectually defeat his claim under his policy. Such an interpretation would be unreasonable, and cannot be supposed to have been in the minds of the contracting parties at the time the insurance was effected.

The construction of these conditions should be reasonable, and as near the apparent intent of the parties as may be consistent with the terms employed, taking into consideration the motives that led to their insertion in the contract and the object intended to be effected by them. It was not practicable for the parties to provide for every case which might arise, but they could and did provide in general terms for ordinary cases, and having done so, extraordinary cases and exceptions were necessarily left to be decided upon the general principles which they prescribed for those most likely to happen. Ordinarily the books of the insured might be preserved and capable of production at the call of the insurer, and hence their production, if called for, was made a condition precedent to the liability of the underwriter. This clause should not, however, be so con-

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«trued as to require a party to produce books which he had not, and which, without fault on his part, he could not produce. So, if all means of making an accurate inventory of the property destroyed were lost, the condition should be so construed as only to require the best and most perfect statement which the party could make. This class of conditions, annexed to and making a part of contracts of insurance, has always been liberally .construed as requiring only good faith on the part of the assured and the best evidence of his loss which he could give, and so as to secure to the insurer all the substantial benefits of the conditions. If this has been found necessary, in former times, in order to give effect to the contract of insurance as a real and not an illusory contract of indemnity, it is still more necessary now, when, with the multiplication of companies holding themselves out as insurance companies and bidding for risks, legal ingenuity and practical experience and skill have been exerted to the utmost to devise terms and conditions and new and unheard-of provisions by which the nominal, underwriters may guard against a legal liability in case of a loss of the property insured by "the perils proposed to be insured against.

The only safety for the insured is to apply the same rules of construction to the new terms and conditions which have been by the courts applied to the same contract heretofore, and to give them that reasonable construction which good faith and good sense require. In Norton v. Rensselaer & Saratoga Company ( 7 Cow., 649 ), Savage, Ch. J., says; “ The clause requiring proof of marine losses has been construed with considerable liberality.. The courts have looked to the circumstances, and required no more information of the party than what appeared to be within his controland the same liberal construction was in that case extended to a fire policy. Thompson, J., in Lamere v. The Ocean Insurance Company (11 J. R., 260), says: This clause has always been liberally expounded, and is construed to require only the best evidence

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of the fact which the party possesses at the time.” Such has been the uniform construction put upon it by the courts. (See also 2 J. R., 136; 8 id., 317; McLaughlin v. The Washington County Mutual Ins. Co., 23 W. R., 525 .)

The “particular account of the loss or damage,” and the “ inventory of all property destroyed or damaged, giving the value in cash of the damage sustained to each item,” require the party only to furnish a statement as particular and full as he can under the circumstances make. The books and papers of the plaintiff having been destroyed by the same fire which consumed the merchandise insured, he is thus deprived of the only means by which he could comply literally with the conditions of the policy, and a less particular statement is sufficient and all that is called for within the fair meaning and intent of the parties as expressed in the contract by the conditions. Notwithstanding the difference in the wording, the conditions are the same in substance as in Norton v. The Rensselaer and Saratoga Insurance, Co., in which the party was required “to deliver in as particular an account of the loss and damage as the nature of the case would admit, &c.” The qualification of the requirement did in no respect vary its legal effect, as was held in McLaughlin v. The Washington Co. Mutual Insurance Co., in which it was required that the insured should deliver “a particular account of such loss or damage,” the court deciding that no more was required in this case than the former, and holding a general statement of the loss, and even as general as that first furnished by the plaintiff in the case at bar, sufficient; that a “particular account” only meant as particular an account as the nature of the case would admit. In the case first cited, a statement in form very like that furnished in the case before us, and no more particular, was held sufficient under the liberal construction of this clause in the policy, and as particular as the nature of the case would admit; and this qualification must necessarily be engrafted upon each policy to avoid injustice and

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give effect to the contract. Although in Norton’s case ( 7 Cow., 645 ), the plaintiff had, in pursuance of a call from the defendants, furnished, as did the plaintiff in this case, a more particular statement, within less than sixty days before the commencement of the action, the court, in their judgment, lay no stress on and do not even allude to the second statement ; but hold the first sufficient in law under the circumstances, and that when all the papers furnishing details were consumed with the goods, a statement of the gross amount lost with the circumstances of the loss was sufficient.

The condition in Mason v. Henry (8 Exch. Rep., 819) was indeed more like the one before us. The party was required to deliver accounts exhibiting the full particulars and amount of the loss sustained, estimated with reference to the state in which the property destroyed or damaged was immediately before the fire happened.” Pollock, C. B., interrupting counsel arguendo, said: “The term ‘full particulars,’must mean the best particulars the assured can reasonably give and in pronouncing the decision of the court, the same judge, speaking of the claim of the counsel of the under-1 writer for a strict construction of the policy, says: “ but the condition is not to be construed with such strictness. Its meaning is, that the assured will, within a convenient time after the loss, produce to the company something which will enable them to form a judgment as to whether or no he has sustained a loss.” The other barons coincided with him.

The plaintiff, in his first statement of loss, saya that the entire amount of property contained in his store and partly covered by said insurance, that is, insured to a part of its value, together with his books and papers, was destroyed by fire; that the total amount of property in said store, owned by him and destroyed, was at least two thousand dollars, and, as he believed, much more, but from the destruction of his books, papers, bills of purchase and inventories he was unable particularly to set forth the

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same. The fact that he afterwards attempted, at the request of the company, to make a more particular statement from recollection and estimate, as did Norton in the case in 7 Cowen, does not tend to invalidate the truth of the statement ; and in the absence of fraud or of evidence tending to impeach its accuracy, the proof was a substantial compliance with the conditions of insurance and the by-laws of the company, and sufficient to entitle the plaintiff to recover.

The conclusion to which I have come upon the question considered, renders it unnecessary to examine the other question, which is of less general interest, to wit, whether the defendants did not, by receiving and acting upon the pro ofs furnished, without obj ections, assent to their sufficiency and waive' any formal objection which might have been taken to them. But upon this ground I think there is sufficient evidence in the case to warrant the decision and uphold the judgment in the court below.

On the 1st of July, 1850, and about seven days after the fire, the plaintiff furnished the defendants with notice and proof of the loss, which he supposed to be in accordance with the requirements of the policy ; and on the 7th of August he transmitted a further account, which had been made up as soon as could be done after receiving the request of the company, and the making of which had occupied several days. There is no evidence of the time when this request was made, what the objection was, or whether it was anything more than a bare request for further information without taking a distinct objection. The defendants did not, after that, make any allusion to the proof of loss or the accounts furnished, but on the 5th of September informed the plaintiff by letter that they had come to the conclusion that they were not legally liable to pay the insurance. Had they intended to rest their objection upon a defect in the proofs, they should have so said, and in a reasonable time after they were furnished, that the defects

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might have been remedied. The defendants could not, after the receipt of the proofs, retain them in their hands until the lapse of the thirty days allowed the plaintiff to furnish them, and then make objections and preclude the plaintiff from supplying omissions and covering the defects. Had the defendants promptly objected to the second statement and pointed out its defects, if any there were, there was, so far as the evidence discloses, ample time for the •plaintiff to make out new proofs within the thirty days allowed him, hot counting the time during which the defendants retained his papers without objecting to their 'sufficiency. But aside from this, the defendants clearly intimated to the plaintiff that their objection to their •liability was upon the merits, and not a technical objection to the proof of loss, and such objection was an admission that the proofs were sufficient, and estops the defendant from alleging the contrary now, and to this effect are all the decisions. (Taylor v. The Merchants' Fire Ins. Co., 9 How. U. S. Rep., 390; O'Niel v. The Buffalo Fire Ins. Co., 3 Comst., 122; Ætna Fire Ins. Co. v. Tyler, 16 W. R., 385 ; Bodle v. Chenango Mutual Ins. Co., 2 Comst., 53; Child v. Sun Mutual Ins. Co., 3 Sandf. S. C. R., 26; 6 Cushing Rep., 242; id., 440 .

The judgment of the supreme court must be affirmed, with costs.

Among the multitude of provisions in 'and connected with the policy in this case, and by which the insurance company have attempted to shield themselves from liability, I do not perceive any one which precludes them from waiving a condition adopted for their own protection. Preliminary proofs were furnished by the insured 'within the thirty days specified in the conditions, showing the gross amount of the goods destroyed, but not with the particularity required by the contract. As an excuse for the omissi jn, he swore to the destruction of his “books, papers,

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bills of purchase and inventories,” which disabled hito from a strict compliance with the conditions. These proofs were received by the corporation, examined by the directors, who subsequently, but whether within the thirty days, or otherwise, is not expressly proved, required additional proofs, which, on the 7th of August following, were furnished, and received without objection. In the letter inclosing them the attorney wrote: “ Inclosed you will receive the additional proof required by you. The applicant for damages, with his assistants, have been engaged for several days in making them,” and concludes: “please give me the information expected by the applicant of the action of the company upon his claim.” On the fifth of September, the attorney of the company wrote to the plaintiff’s attorney that “ the company have ascertained the facts in relation to the loss of Mr. Bumstead, in June last, and have come to the conclusion that they are not legally liable to pay him his insurance.” He then concludes with an offer of $500, rather than have any litigation at this early stage of their business. From this evidence, the referee has found as a fact, that the inventory and account of the loss and damage, furnished on the 7th of August, was “in full compliance with the requirements of the defendants.” This decision of the referee establishes that the request for additional proofs was made after the expiration of the thirty days prescribed in the policy, because they were furnished on the seventh of August, and were a full compliance with the demand of the company. I think the finding is sustained by the evidence; but if it were not entirely satisfactory., there was evidence tending to prove the fact upon which the referee was called to pass, and his conclusion is not, here, the subject of review.

Assuming this fact as established, the referee was correct in the legal inference, that the defects in the original proofs being supplied by the additional proofs furnished in compliance with the request of the company, and received and

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retained by them without objection, the defendants thereby “ waived the right to insist upon such defects and omissions.” The plaintiff had insisted upon the waiver in his replication, and no objection was made before the referee as to the admissibility of the evidence, but only as to its effect. In 6 Cushing (343), the plaintiff’s application provided that he should b&?bound by the act of incorporation, which declared that the insured should, within thirty days after the loss, give notice in writing. The only notice given was by letter of the agent of the company, not purporting to be upon the request of the insured. It was held that, as the defendants were in fact notified, and their president had visited the ruins, and as no objection was taken to the form of the notice, and they did not put their refusal upon that ground, but declined paying altogether, they had waived further notice. The same doctrine was affirmed in Underhill v. Agawam M. I. Co. (6 Cushing, 445), and in 16 Wend., 385 , 401, and in 23 Wend., 525 , 527.

The judgment of the supreme court should be affirmed.

All the judges were in favor of affirmance on both the grounds discussed in the foregoing opinions.

Judgment affirmed.