who form their estimate mainly from what is told them by the assured and who do not have the same opportunities of personal examination as those by whom the award was regularly made, notwithstanding a great discrepancy or difference in the amounts.

Michels v. Western Underwriters' Assoc., 129 Mich. 417, 89 N. W. Rep. 56.

RULE 75.

Company Cannot Retain Advantage of Award Obtained by Fraud of Adjuster on Claim That He Had no Authority to Act.

An insurance company cannot retain the advantage of an award by appraisers when held void through fraud by the plea that the adjuster guilty of the fraud did not represent it and was not authorized to act in its behalf.

Kaiser v. Hamburg-Bremen Ins. Co., 59 App. Div. 525, 60 N. Y. Supp. 344, affd., 172 N. Y. 663, without opinion.

RULE 76.

Meaning of Misconduct by Appraisers.

Misconduct requiring the setting aside of an award by appraisers does not necessarily mean an evil intention as an essential ingredient; there may be unfairness or acts contrary to power and authority or in excess of it without imputing improper motives to the appraisers.

Providence-Washington Ins. Co. v. Board of Education. 49 W. Va. 360, 38 S. E. Rep. 679; Kearney v. Washtenaw Ins. Co., 126 Mich. 246, 85 N. W. Rep. 733; N. Y. Mutual Savings Assoc. r. Manchester Assur. Co., 94 App. Div. 104, 87 N. Y. Supp.

RULE 77.

Duty of Parties when Award Objected to on Ground of Fraud or Misconduct.

If an award is objected to or attacked upon the ground of fraud or misconduct of the appraisers, and one party to the controversy notifies the other of that fact, demanding a reappraisement on account of such misconduct, it then becomes the duty of the other party to investigate the validity of the charges and determine whether or not he will abide by the award or submit to a reappraisement; and if it is determined to abide by the award and refuse to submit to a reappraisement the party is thereby estopped from thereafter demanding another appraisement in case the charges shall prove to be sustained. This rule applies impartially to action of either party.

Christianson v. Norwich Union Ins. Soc., 84 Minn. 526, 88 N. W. Rep. 16; Produce Refrigerator Co. v. Norwich Union Ins. Assoc., Minn. 97 N. W. Rep. 875.

RULE 78.

Award Void for Uncertainty.

An award is void for uncertainty when no amount is named or means indicated by which it can be found.

St. Paul F. & M. Ins. Co. v. Gotthelf, 35 Nebr. 351, 53 N. W. Rep. 137, 22 Ins. L. J. 34.

RULE 79.

Award not Limited by Two-thirds Clause in Policy. An appraisal and award of actual damage, with proper deductions is not an appraisal of the value of a building, and hence the award is not limited or affected by a two-thirds value clause in the policy.

Snowden v. Kittanning Ins. Co., 122 Pa. St. 502.

RULE 80.

Not Necessary to Return or Tender Money Received under a Void Award before Suit in Equity.

Where the assured brings suit in equity to set aside an award, it is not necessary to first tender the money which has been received thereunder, but it is necessary to offer to restore the same in the complaint and to make the same offer on the trial; the only exception is where concededly the assured is entitled in any event to all that has been received.

Remington Paper Co. v. London Assur. Co., 12 App. Div. 218, 43 N. Y. Supp. 431. And see Townsend v. Greenwich Ins. Co., 39 Misc. 87, 78 N. Y. Supp. 897, affd., 86 App. Div. 323, 83 N. Y. Supp. 909, affd., 178 N. Y. 634, without opinion.

RULE 81.

Recovery of Interest when Award Set Aside.

Where assured brings his suit to set aside an award of appraisers and to recover on the policy he should not be allowed to recover interest until decree is entered, because the award being rejected there was nothing to compute interest on.

Stemmer v. Scottish Ins. Co., 33 Oreg. 65, 27 Ins. L. J. 992, 53 Pac. Rep. 498.

RULE 82.

Remedy of Insured when Award Claimed to be Void.

If award is claimed by the assured to be void on the ground of fraud, in a State where under a Code of Practice both legal and equitable relief may be obtained in the same suit or court, action may be brought upon the policy, and if the company sets up the award as a defense, assured may under a reply, or without a

reply, where that is not required, prove upon the trial the facts making void the award;1 or in the complaint upon the policy assured may set forth the facts and ask to have the award set aside.2 If insured fails to establish right to equitable relief, his complaint must state facts entitling him to judgment at law upon the policy.3

1. Sullivan v. Traders' Ins. Co., 169 N. Y. 213, 62 N. E. Rep. 146.

2. Maher v. Home Ins. Co., 75 App. Div. 226, 78 N. Y. Supp. 44; Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. Rep.

458.

3. Bellinger v. German Ins. Co., 95 App. Div. 262, 88 N. Y. Supp. 1022.

RULE 83.

Remedy when Distinction between Common-Law and Equity Practice Prevails — Burden of Proof - No Cause of Action on Award Itself.

In a State where the distinction between the common-law and equity practice prevails, in an action at law upon the policy, the award is conclusive and evidence to impeach it is not admissible; either party desiring to attack it must have resort to a court of equity,' but otherwise in a State where such distinction does not prevail. Where a company's answer to an action upon the policy sets up an award its validity may be attacked in reply or by proper evidence and determined in same action;2 and in such a case the burden of proof rests upon the party asserting it to establish the fraud or other fact invalidating the award. There is no cause of action on the award itself independent of the terms and conditions of the policy,* unless coupled with an express promise to pay it." 1. Robertson v. Scottish Union Ins. Co., 68 Fed. Rep. 173; Billmyer v. Hamburg-Bremen Ins. Co., W. Va. Rep. 901; Fire Assoc. v. Allesina, Oreg. 77 Pac. Rep.

123.

49 S. E.

2. Davis v. Atlas Assur. Co., 16 Wash. 232, 47 Pac. Rep. 436, rehearing denied, 16 Wash. 239, 47 Pac. Rep. 485; Phoenix Ins. Co. v. Romeis, 15 Ohio C. C. 697; Canfield v. Watertown Ins. Co., 55 Wis. 419, 13 N. W. Rep. 252. And see Rule 82.

3. German-American Ins. Co. v. Johnson, 4 Kans. App. 357, 45 Pac. Rep. 972.

4. Soars v. Home Ins. Co., 140 Mass. 343, 5 N. E. Rep. 149; Haslinger v. Long Island Ins. Co., 62 Mich. 144; BritishAmerican Ins. Co. v. Darragh, 128 Fed. Rep. 890, 63 C. C. A. 426; Billmyer v. Hamburg-Bremen Ins. Co., W. Va. 49 S. E. Rep. 901.

5. Stockton Works v. Glens Falls Ins. Co., 98 Cal. 557, 33 Pac. Rep. 633.

RULE 84.

Competency of Evidence of Appraisers.

In an action brought on a policy and to set aside an award of appraisers it is competent for one of the appraisers who refused to join in the award to testify to acts of partiality and misconduct on part of the other appraisers.

Levine v. Lancashire Ins. Co., 66 Minn. 138, 26 Ins. L. J. 36, 68 N. W. Rep. 855.

RULE 85.

Remedy of Insurance Companies in Equity to Enforce Award.

In a complicated case where the policies are not concurrent in terms or form and to avoid a multiplicity of actions to determine the proportionate liability of each company where there has been an appraisal and an award, the insurance companies joining therein may tender the aggregate amount of the award to the insured, and then if refused may file a bill in equity to enforce same and enjoin separate actions at law upon the policies.

American Central Ins. Co. v. Landau, 56 N. J. Eq. 513, 39 Atl. Rep. 400, 27 Ins. L. J. 276.