3. Hutchinson v. Liverpool, L. & G. Ins. Co., 153 Mass. 143, 26 N. E. Rep. 439; Milwaukee Mechanics' Ins. Co. v. Schallman, 90 Ill. App. 280, affd., 188 Ill. 213, 59 N. E. Rep. 12.

It has been held in California that if there is no request by either party and there is no appraisal, the condition is violated and no recovery can be had. Adams v. South British Ins. Co., 70 Cal. 198. See Rules 8, 87, 88.

RULE 94.

Failure to Demand as Evidence of Waiver.

When policy provides that the loss becomes due and payable sixty days after furnishing of proofs of loss, including an award by appraisers, when an appraisal has been required and there is no demand for an appraisal within sixty days after the receipt of proofs, it is evidence of waiver;1 demand should be within sixty days after the fire or made promptly on receipt of proofs.2

1. American Cent. Ins. Co. v. Heath, 29 Tex. Civ. App. 445, 69 S. W. Rep. 235.

2. Lion Ins. Co. v. Heath, 29 Tex. Civ. App. 203, 68 S. W. Rep. 305. See Rules 2, 87.

RULE 95.

Appraisal May be Made Evidence of Waiver.

An appraisal and award may be acceptable as satisfactory proofs of loss or be made evidence of waiver thereof,1 specially when coupled with an agreement by the company or its representative to pay the amount of the award as soon as made.2

1. Smith v. Herd,

Ky.

60 S. W. Rep. 841. And see London & Lancashire Ins. Co. v. Storrs, 71 Fed. Rep. 120, 17 C. C. A. 645, 25 Ins. L. J. 283.

2. Snowden v. Kittanning Ins. Co., 122 Pa. St. 502. See Rule 96.

RULE 96.

No Waiver by Appraisal under Standard Form — Effect of Other Waiver of Options or Time - Ap

Acts in Connection

praisal Agreement.

Under the specific language of the standard form an appraisal cannot be claimed of itself to be evidence of a waiver,' but other acts not so provided for in connection may be evidence of waiver raising a question of fact for a jury;2 and demand for appraisal or appraisal may operate as evidence of a waiver of option to rebuild; or of proofs of loss within limited time, but not of proofs; an agreement for submission to appraisal after the loss may guard against waiver by proper terms. 6

1. Walker v. Phoenix Ins. Co., 89 Hun, 333, 35 N. Y. Supp. 374, revd., 156 N. Y. 628, 633, 51 N. E. Rep. 392, but without affecting this rule; Gibson Electric Co. v. Liverpool, L. & G. Ins. Co., 10 App. Div. 225, 41 N. Y. Supp. 675, affd., 159 N. Y. 418, 54 N. E. Rep. 23; Kiernan v. Dutchess County Ins. Co., 150 N. Y. 190, 44 N. E. Rep. 698; Phoenix Ins. Co. v. Searles, 100 Ga. 97, 27 S. E. Rep. 779; American Central Ins. Co. v. Bass, 90 Tex. 380, 38 S. W. Rep. 1119, 26 Ins. L. J. 718; Fournier v. German-American Ins. Co., 23 R. I. 36, 49 Atl. Rep. 98; City Drug Store v. Scottish Union Ins. Co. (Tex.), 44 S. W. Rep. 21; Queen Ins. Co. v. Young, 86 Ala. 424, 5 So. Rep. 116; Holbrook v. Baloise Ins. Co., 117 Cal. 561, 49 Pac. Rep. 555. And see Briggs v. Firemen's Fund Ins. Co., 65 Mich. 52; Johnson v. American Ins. Co., 41 Minn. 396, 43 N. W. Rep. 59. 2. Pool v. Milwaukee Mechanics' Ins. Co., 91 Wis. 530, 65 N. W. Rep. 54; Kiernan v. Dutchess County Ins. Co., supra; Walker v. Phoenix Ins. Co., 156 N. Y. 628, 633, 51 N. E. Rep. 392. 3. McAllaster v. Niagara Ins. Co., 156 N. Y. 80.

4. Bishop v. Agricultural Ins. Co., 130 N. Y. 488, 29 N. E. Rep. 844; Exchange Bank v. Thuringia Ins. Co., Mo. App.

83 S. W. Rep. 534. But see and compare Fournier v. German-American Ins. Co., supra.

5. Wicking v. Citizens' Ins. Co., 118 Mich. 640, 647, 77 N. W. Rep. 275.

6. Gilligan v. Commercial Ins. Co., 20 Hun, 93, affd. without opinion, 87 N. Y. 626; Cook v. North British & M. Ins. Co., 181 Mass. 101, 62 N. E. Rep. 1049.

RULE 97.

Rule of Waiver as Imposed by Contract.

The insurance company does not waive any provision or condition of the policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal provided for.

This rule is imposed in above terms by the standard form of policy prescribed in New York and other States, as stated under Rule 1, excepting the State of Wisconsin, which is the same except that the following words are inserted "except as above expressly provided for." See appraisal clause in Wisconsin form under Rule 1.

The standard forms of Maine, Massachusetts, Minnesota, New Hampshire, and South Dakota do not contain provision as to waiver. See also “Waiver."

RULE 98.

Effect of Statute Fixing Amount of Loss.

Where there is a statute making the amount of the policy the measure of damage in event of destruction of a building, and the building insured is wholly destroyed, the appraisal clause is inoperative; but otherwise where there is only partial destruction; or wherever under the terms of the statute the amount written is not made conclusive evidence of value or amount of recovery; consent to appraisal does not operate as a waiver of claim to a total loss.*

1. German Ins. Co. v. Eddy, 36 Nebr. 461, 54 N. W. Rep. 856, 22 Ins. L. J. 468: Queen Ins. Co. v. Leslie, 47 Ohio St. 409, 24 N. E. Rep. 1072; Phoenix Ins. Co. v. Port Clinton Fish Co.,

14 Ohio C. C. 160; Merchants' Ins. Co. v. Stephens (Ky.), 59 S. W. Rep. 511; O'Keefe v. Liverpool, L. & G. Ins. Co., 140 Mo. 558, 41 S. W. Rep. 922, 26 Ins. L. J. 888; Hartford Ins. Co. v. Bourbon Co., 115 Ky. 109, 72 S. W. Rep. 739; Marshall v. American Mutual Ins. Co., 80 Mo. App. 18; Jacobs v. North British & M. Ins. Co., 61 Mo. App. 572; Harrison v. GermanAmerican Ins. Co., 67 Fed. Rep. 577; Commercial Union Assur. Co. v. Meyer, 9 Tex. Civ. App. 7, 29 S. W. Rep. 93; Ætna Ins. Co. v. Shacklett (Tex.), 57 S. W. Rep. 583; Doxey v. Royal Ins. Co. (Tenn.),, 36 S. W. Rep. 950, affd. orally by the Supreme Court; Thompson v. Insurance Cos., 43 Wis. 459, 45 Wis. 388; Seyk v. Millers' Ins. Co., 74 Wis. 67, 41 N. W. Rep. 443. And see Ritchie v. Firemen's Ins. Co., W. Va. 47 S. E.

Rep. 94.

2. Stemmer v. Scottish Ins. Co., 33 Oreg. 65, 53 Pac. Rep. 498, 27 Ins. L. J. 972; Hartford Ins. Co. v. Bourbon Co., supra. 3. Zalesky v. Home Ins. Co., 108 Iowa, 341, 79 N. W. Rep. 69; Baker v. Phoenix Assur. Co., 57 Mo. App. 559.

4. Pennsylvania Ins. Co. v. Drackett, 63 Ohio St. 41, 57 N. E. Rep. 962.

RULE 99.

Appraisal under Statute Fixing Amount of Loss.

Where a building destroyed by fire was worth more than the value of the foundations ($500) over the total amount of insurance, a difference of opinion as to the application of the $500 value left in the foundations becomes immaterial, and cannot be urged as a ground of difference requiring an appraisal, when a statute makes the company liable for amount insured, and, except in case of a total loss, requires an appraisal.

Ohage v. Union Ins. Co., 82 Minn. 426, 85 N. W. Rep. 212.

13

CHAPTER FOURTH.

Statement or Proof of Loss and Other Requirements or Conditions Precedent to Loss Becoming Due and Payable Iron Safe Clause Fraud.

TITLE 1. Statement or proof of loss. 2. Plans and specifications.

3. Certificate of magistrate or notary.

4. Examination of insured under oath.

5. Production of books of account, bills, and invoices. 6. Iron safe clause.

7. Fraud or false swearing.

TITLE I.

Statement or Proof of Loss.

RULE 1. Duty of insured to render a statement or proof of loss as imposed by contract.

2. Clause requiring statement or proof of loss a condition precedent.

3. Time for serving statement or proof commences to run from termination of the fire.

4. Statement must be furnished in specified time When in reasonable time - Excuses for delay.

5. Mailing statement in prescribed time but not received in such time.

6. Distinction between failure to furnish in time and defects in form.

7. When statement or proof required forthwith.

8. Question of due diligence.

9. When time not essence of the contract.

10. Modification of Rule 2 Effect of not furnishing

-

proof in prescribed time.

11. When time prescribed expires on Sunday.

12. Presumption from mailing - Delivery.

13. When insured is dead.

14. Delivery of proofs to company or agent.

15. Authority of local agent.

16. Insured must furnish the proofs
17. Duty of mortgagee.

Exceptions.