* Vernon Ins. Co. v. Maitlen. * * made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided, and, the amount of loss or damage having thus been determined, the sum for which this company is liable pursuant to this policy, shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of loss have been received by this company in accordance with the terms of this policy. 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 an appraisal has been required. 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 appraisers respectively selected by them, and shall bear equally the expense of the appraisal and umpire." It is admitted by the appellee that the provisions of the policy respecting arbitration of the amount of the loss are conditions precedent, and no question is made as to their validity; but it is contended that there was a waiver of these conditions by the company, and the facts supposed to constitute such waiver are stated in the complaint, substantially as follows: It is alleged that the parties differed touching the amount of the loss, and that the company demanded an arbitration to determine the sum for which it was liable; that the appellee then selected one Joseph Zehner, of Dunkirk, Indiana, and that the company selected A. N. Hadley of Indianapolis, Indiana; that these appraisers inspected Vernon Ins. Co. v. Maitlen. the property, but were unable to agree upon the amount of the loss, and failed to determine the same; that Hadley proposed the names of J. W. Hensly, of Indianapolis, Indiana, Teeter, of Hagerstown, Indiana, and Cro zier, and Ball, of Muncie, Indiana, together with the names of various other persons, unknown to appellee, for the position of umpire; that all these persons resided at great distances from Dunkirk, Indiana, near which place the property insured was situated, and were unknown to said Zehner, and to the appellee, and for these reasons were rejected by said Zehner; that said Zehner then proposed the names of James Ashcraft and William Teague, of Dunkirk, Indiana, and Runyon, of Redkey, Indiana, who resided near to or in the locality where the property insured was situated, and were acquainted with the value of such property in that neighborhood; that Hadley, unjustly and unreasonably, refused to agree to the appointment of any one of the persons so named by Zehner, and insisted on the appointment of Hensly, or some person living outside of Jay county, and remote from the locality of the property insured; that said appraisers separated without agreeing on said loss, and without agreeing on an.umpire; that said Hadley and the company still insist on the selection of Hensly, and no other person as such umpire, and that said company refused to adjust said loss, or pay the same. The complaint contains, also, a general averment that the appellee has performed all the conditions of the said policy on his part to be performed. A demurrer to the complaint was overruled, and the appellant answered in two paragraphs, the first being a general denial, and the second stating a defense founded upon a clause of the policy providing for an apportionment of the loss among the several insurers, where the property was insured by more than one company. To the second paragraph of answer, a reply in denial was filed. The case was tried by a jury, who returned a verdict assessing the dam Vernon Ins. Co. v. Maitlen. ages of the appellee at $590. Appellant moved, unsuccessfully, for a new trial, and judgment was rendered on the verdict. Errors are assigned upon the rulings on the demurrer to the complaint, and on the motion for a new trial. The only question upon the complaint is whether its averments show a waiver by the appellant of the condition respecting arbitration of the amount of the loss. It appears that a demand was made by the appellant for the appointment of appraisers of the loss, and that each party selected an appraiser. Failing to agree, the two appraisers made an effort to select an umpire. Several persons were proposed by each appraiser, but none was acceptable to both. The appraiser chosen by appellee insisted that the umpire should be a resident of Dunkirk, near which the property insured was situated, or of the immediate vicinity of that town; the other appraiser demanded that the umpire should be taken from Indianapolis, or some point not in the immediate neighborhood of Dunkirk. The appraisers seem to have been equally honest, and equally unreasonable in their views concerning the proper qualifications of an umpire. Those views proved to be irreconcilable. It cannot be said that one of the parties, more than the other, was responsible for the failure to agree upon an umpire. We cannot attribute bad faith or perversity to either. We must ascribe their failure to agree, rather, to the peculiarities of the two appraisers. Other appraisers, if chosen, may easily decide the amount of the loss, or, in case of a difference of opinion on this point, may promptly select an umpire. The condition of the policy providing for an estimate of the amount of the loss by appraisers, assisted, if necessary, by an umpire, still stands as the binding agreement of the parties, and it has neither been complied with nor waived. Upon the final disagreement of the appraisers Zehner and Hadley, the parties should have selected other appraisers, and such appraisers, in case they disagreed touching the amount of the loss, should have chosen an umpire. Vernon Ins. Co. v. Maitlen. The question raised by the demurrer to the complaint has very recently been determined by the supreme court of Iowa, the supreme court of Ohio, and the court of appeals of New York, and the exhaustive opinions in these cases leaves nothing more to be said upon the point decided. In Westenhaver v. German-American Ins. Co. (Iowa), 84 N. W. 717, the supreme court of Iowa said: "It appears from the evidence that an adjuster representing the defendant and another company called on the plaintiffs just after the fire and attempted to adjust the loss. Failing in this, he served notice on the plaintiffs to put the stock in order, separate the damaged from undamaged, and make complete inventory of the same, in accord with the terms of the policy, and that submission of the amount of loss to appraisers was required. Plaintiffs were also informed by this notice that defendant would at once select an arbitrator, and they were requested to name a time when, and place where, the appraisers so appointed could meet the one selected by plaintiffs. Complying with the statement, defendant selected one Larson, a merchant of wide experience, living at Crystal Lake, Minn., about 30 miles distant from Buffalo Center [where the fire occurred]. Plaintiffs selected one Hubbard, a livery stable keeper in the town of Buffalo Center, who was the father of plaintiff's cashier. Shortly after the service of the notice, these appraisers met at Buffalo Center and attempted to choose an umpire. They each submitted a list of names to the other from which to select an umpire. The appraiser appointed by the defendant [insurance company] presented a list of twenty-two names of merchants and business men living in Forest City, Britt, Wesley, Garner, Clear Lake, Mason City, Belle Plaine, Marshalltown, Des Moines, Correctionville, Sioux Rapids, Ida Grove, and Buffalo Center, Iowa, and Minneapolis, and Blue Earth, Minn. So far as shown, they were all men of excellent character. The arbitrator selected by plaintiffs objected to those who lived in the im * * * Vernon Ins. Co. v. Maitlen. mediate vicinity of Buffalo Center, because competitors of plaintiff, and to those who lived more distant, as at Marshalltown and Des Moines, as too distant. Another was rejected because he was a banker. There was no showing that Larson was actuated by any other motive than to secure an impartial umpire in presenting his list. Hubbard presented a list of twelve names of merchants and business men residing at Clear Lake, Belmond, Buffalo Center, Garner, and Algona, Iowa, and Winona and Blue Earth, Minn., and Columbus, Prescott, and Delavan, Wis., and Rockford, Ill. One of them was an old partner of Hubbard, and another a partner of this partner, and one or both had had losses from fire, and difficulties with insurance companies. Another was an old time friend of Hubbard, and the landlord of the hotel where the plaintiffs and many of their employes boarded. Another had had difficulty in adjusting an insurance loss, and some were non-residents of the state, and were unknown to either of the appraisers. Many of the names were suggested by plaintiffs or their employes. It also appeared that Hubbard constantly counseled with and was largely directed by plaintiffs in his attempt to secure an umpire. These facts are mentioned, not for the purpose of showing fraud or bad faith, but as evincing a purpose on the part of the plaintiffs to derive every advantage possible in the arbitration. There is, as we have said, no evidence that Larson was acting on the immediate suggestion of the defendant [insurance company] or its agents; and, so far as he was actuated by no other motive than to secure a fair and unprejudiced umpire, even if he did not show the best of judgment, the defendant is not to be held responsible for his mistakes. There is little doubt that the appraisers attempted to agree, and the trial court, no doubt, found that they would have agreed on some of the names presented by Larson, had not plaintiffs objected thereto. We are content to hold that this is as much as can be claimed from the evidence, that after an honest and earnest attempt the |