RULE 86.

Insured May Obtain Relief from Effect of Limitation Clause by Cross-Bill in Same Suit.

When an insurance company has filed a bill in equity to enjoin the insured from bringing an action at law on the policy and an award of appraisers, and obtains a temporary injunction restraining such action which continues in force until after the limitation clause in the policy has become operative, it is proper for the insured to file a cross-bill setting forth the facts and ask for affirmative relief from such effect of the injunction and for payment of the amount due under the policy as determined by the award. The court having obtained jurisdiction will retain it, and it is no valid objection to such cross-bill that it asserts a claim cognizable at law.

North British & Mercantile Ins. Co. v. Lathrop, 63 Fed. Rep. 508, affd., 70 Fed. Rep. 429, 17 C. C. A. 175.

RULE 87.

Waiver of Appraisal.

An agreement or adjustment of amount of loss renders the appraisal clause inoperative or as a waiver of same; and so where the proofs are accepted without objection or a demand for an appraisal;2 and so where the company has demanded an appraisal, but fails to name an appraiser and to appear at time and place designated; and so where company delays demanding an appraisal after furnishing of proofs it may be evidence of waiver; and so where company delays for twenty-one days to respond to objection of assured to

its proposed appraiser coupled with difficulty of preserving goods damaged; the appraisal may be orally waived and a waiver does not depend on written evidence and is waived by exercise of option to repair, replace, or rebuild, or by refusal of company to have appraisal or to proceed thereunder on assured's request.8

1. Wholley v. Western Assur. Co., 174 Mass. 263, 54 N. E. Rep. 548, 28 Ins. L. J. 263; Manchester Assur. Co. v. Koerner, 13 Ind. App. 372, 40 N. E. Rep. 1110.

2. Virginia F. & M. Ins. Co. v. Cannon, 18 Tex. Civ. App. 588, 45 S. W. Rep. 945; Vangindertaelen v. Phoenix Ins. Co., 82 Wis. 112, 51 N. W. Rep. 1122; Randall v. Insurance Cos., 10 Mont. 340, 362, 368, 25 Pac. Rep. 953, 960. And see Everett v. London & L. Ins. Co., 142 Pa. St. 332, 21 Atl. Rep. 819.

3. Northern Assur. Co. v. Samuels, 11 Tex. Civ. App. 417, 33 S. W. Rep. 239.

4. American Ins. Co. v. Stuart (Tex.), 38 S. W. Rep. 395; Gibbs v. Continental Ins. Co., 13 Hun, 611. And see Gere v. Council Bluffs Ins. Co., 67 Iowa, 272; Tilley v. Connecticut Ins. Co., 86 Va. 811, 11 S. E. Rep. 120; Zimeriski v. Ohio Farmers' Ins. Co., 91 Mich. 600, 52 N. W. Rep. 55; Robertson v. New Hampshire Ins. Co., 16 N. Y. Supp. 842.

5. McManus v. Western Assur. Co., 22 Misc. 269, 48 N. Y. Supp. 820, affd. on opinion below, 43 App. Div. 550, affd., 167 N. Y. 602, without opinion.

6. Hutchinson v. Liverpool, L. & G. Ins. Co., 153 Mass. 143, 26 N. E. Rep. 439; Carroll v. Girard Ins. Co., 72 Cal. 297, 13 Pac. Rep. 863.

7. Wynkoop v. Niagara Ins. Co., 91 N. Y. 478; Elliot v. Insurance Co., 109 Iowa, 39.

8. Continental Ins. Co. v. Wilson, 45 Kans. 250, 25 Pac. Rep. 629; Powers Dry Goods Co. v. Imperial Ins. Co., 48 Minn. 380, 51 N. W. Rep. 123; Phoenix Ins. Co. v. Stocks, 149 Ill. 319, 332, 36 N. E. Rep. 408; Schouweiler v. Merchants' Ins. Co., 11 S. D. 401. And see Rule 88.

RULE 88.

Insured May by Notice Create Evidence of Waiver.

When assured notifies the insurance company that unless loss is adjusted or agreement for appraisal made within a certain reasonable time it will be deemed to have waived an appraisal, and company takes no action and makes no response, it may become evidence of a waiver of appraisal.

Chainless Cycle Co. v. Security Ins. Co., 52 App. Div. 104, 64 N. Y. Supp. 1060, affd., 169 N. Y. 304, 62 N. E. Rep. 392. (About a week was the time named in this case.) See Rule 2.

RULE 89.

Denial of Liability as Waiver.

An unqualified denial of liability and refusal to adjust the loss operates as a waiver of an appraisal;1 but not where the assured has refused to submit to an appraisal.2

1. Thomas v. Lebanon Ins. Co., 78 Mo. App. 268; Vining v. Franklin Ins. Co., 89 Mo. App. 311; Lang v. Eagle Fire Co., 12 App. Div. 39, 42 N. Y. Supp. 539; Baille v. Western Assur. Co., 49 La. Ann. 658, 21 So. Rep. 736, 26 Ins. L. J. 497; Betcher v. Capital Ins. Co., 78 Minn. 240, 80 N. W. Rep. 971; Ætna Ins. Co. v. Simmons, 49 Nebr. 811, 69 N. W. Rep. 125; Home Ins. Co. v. Kennedy, 47 Nebr. 138, 66 N. W. Rep. 278; Kahn v. Traders' Ins. Co., 4 Wyo. 419, 34 Pac. Rep. 1059, 23 Ins. L. J. 401; Hennesy v. Niagara Ins. Co., 8 Wash. 91, 35 Pac. Rep. 585, 23 Ins. L. J. 796; Glens Falls Ins. Co. v. Hite, 83 Ill. App. 549; Lamson Consolidated Stove Co. v. Prudential Ins. Co., 171 Mass. 433, 50 N. E. Rep. 943, 28 Ins. L. J. 70; Stoddard v. Cambridge Ins. Co., 75 Vt. 253, 54 Atl. Rep. 284; Hamburg v. St. Paul F. & M. Ins. Co., 68 Minn. 335, 71 N. W. Rep. 388, 26 Ins. L. J. 782; Stephens v. Union Assur. Soc., 16 Utah, 22, 50 Pac. Rep. 626; Savage v. Phoenix Ins. Co., 12 Mont. 458, 31 Pac. Rep. 66, 21 Ins. L. J. 957; American Cent. Ins. Co. v. Donlon (Colo.), 66 Pac. Rep. 249; Margeson v. Commercial Union Assur. Co.,

31 N. S. 337; Home Ins. Co. v. Gibson, 72 Miss. 58, 17 So. Rep. 13, 24 Ins. L. J. 458; Milwaukee Mechanics' Ins. Co. v. Stewart, 13 Ind. App. 640, 42 N. E. Rep. 290; White v. Farmers' Ins. Co., 97 Mo. App. 590, 71 S. W. Rep. 707; Hickerson v. GermanAmerican Ins. Co., 96 Tenn. 193, 33 S. W. Rep. 1041, 25 Ins. L. J. 422; Yost v. Dwelling-House Ins. Co., 179 Pa. St. 381, 35 Atl. Rep. 517; Moyer v. Sun Ins. Co., 176 Pa. St. 579, 35 Atl. Rep. 221; Bailey v. Etna Ins. Co., 77 Wis. 336, 46 N. W. Rep. 440; Lasher v. Northwestern Ins. Co., 18 Hun, 98; GermanAmerican Ins. Co. v. Etherton, 25 Nebr. 595, 41 N. W. Rep. 406; Wainer v. Milford Ins. Co., 153 Mass. 335, 26 N. E. Rep. 877; Pencil v. Home Ins. Co., 3 Wash. 485, 28 Pac. Rep. 1031; Farnum v. Phoenix Ins. Co., 83 Cal. 246, 23 Pac. Rep. 869; Seigle v. Badger Lumber Co., 106 Mo. App. 110, 80 S. W. Rep. 4; Carp v. Queen Ins. Co., 104 Mo. App. 502, 79 S. W. Rep.

757.

2. Pioneer Mfg. Co. v. Phoenix Assur. Co., 106 N. C. 28, 10 S. E. Rep. 1057.

RULE 90.

Denial of Liability when Coupled with Demand for Appraisal.

A denial of liability is not necessarily a denial of the amount of the loss and is not so inconsistent therewith as to amount to a waiver of an appraisal of the amount of the loss unless such denial is made under such circumstances or is accompanied by such conduct as would make an appraisal fruitless, or such as would justify the assured in believing that an attempt on his part to perform the condition would not be responded to by the insurance company. No such claim can be made by the assured when the company demands an appraisal.

Phoenix Ins. Co. v. Carnahan, 63 Ohio St. 258.

RULE 91.

Omission or Refusal to Join in Appraisal Does not Estop Company from Insisting on Competent Evidence-Ex Parte Appraisal.

The omission or refusal of an insurance company to join in an appraisal and denial of liability does not

estop it from insisting that its liability shall be established by competent evidence; an ex parte appraisal is not such evidence.

Penn Plate Glass Co. v. Spring Garden Ins. Co., 189 Pa. St. 255, 42 Atl. Rep. 138, 28 Ins. L. J. 223.

RULE 92.

No Waiver when Demanded in Proper Time.

An adjuster's attempt to appraise does not operate as a waiver of an appraisal pursuant to the terms of the policy when demanded in proper time;1 silence of the company during such period does not amount to a waiver.2

1. Scottish Union & National Ins. Co. v. Clancy, 83 Tex. 113, 18 S. W. Rep. 439.

2. Phoenix Ins. Co. v. Stocks, 149 Ill. 319, 36 N. E. Rep. 408. See Rule 2.

RULE 93.

When Policy Provides for Written Request.

When the policy provides that an appraisal shall be had at "written request of either party," and there is no such request by either, the clause ceases to be a condition precedent to the loss becoming due and payable,' or else may be regarded as evidence of waiver;2 and so the company's omission or neglect to comply with the assured's request for an appraisal becomes evidence of waiver.3

1. Wright . Susquehanna Ins. Co., 110 Pa. St. 29, 20 Atl. Rep. 716; German Ins. Co. v. Everett, 18 Tex. Civ. App. 514, 46 S. W. Rep. 95.

2. Garretson v. Merchants' Ins. Co., 114 Iowa, 17, 86 N. W. Rep. 32. And see Probst v. American Central Ins. Co., 64 Mo. App. 408.