3

to a special agent or adjuster having authority in connection with the particular fire or loss, is delivery to the company; but as to a local agent who issued the policy there should ordinarily be some evidence as to authority besides the mere fact that he was the agent who issued the policy; when policy requires their being furnished to a particular agent or at a particular place, they should be so furnished; otherwise delivery to an authorized agent is sufficient.

1. Trustees v. Brooklyn Ins. Co., 18 Barb. 69.

2. Insurance Co. of N. A. v. McLimans, 28 Nebr. 653, 44 N. W. Rep. 991.

3. Merchants' Ins. Co. v. Vining, 67 Ga. 661. See Rule 49. 4. See Rules 15 and 35.

And see

5. Edgerly v. Farmers' Ins. Co., 48 Iowa, 644. Walker v. Beecher, 15 Misc. 149, 36 N. Y. Supp. 470; Kirkman v. Farmers' Ins. Co., 90 Iowa, 457, 57 N. W. Rep. 952. And see "Adjuster and Adjustment."

RULE 15.

Authority of Local Agent.

Where there is no limitation on the face of the policy, or otherwise brought to the notice or knowledge of the assured limiting the authority of a local agent, if he has apparent authority by custom to receive proofs of loss, a delivery of same to him is a delivery to the company;1 and in Pennsylvania may be served on the local agent who countersigned the policy under a statute.2

1. Harnden v. Milwaukee Mechanics' Ins. Co., 164 Mass. 382, 41 N. E. Rep. 658, 25 Ins. L. J. 124; McCullough v. Phoenix Ins. Co., 113 Mo. 606, 21 S. W. Rep. 207; Greenlee v. Hanover Ins. Co., 104 Iowa, 481, 73 N. W. Rep. 1050.

2. Welsh v. London Assur. Co., 151 Pa. St. 607, 25 Atl. Rep. 142, 22 Ins. L. J. 94; Oswalt . Hartford Ins. Co., 175 Pa. St. 427, 34 Atl. Rep. 735. See Rule 14.

RULE 16.

Insured Must Furnish the Proofs

Exceptions.

While the insured must always, whenever it is possible, make, sign, swear to, and furnish the statement or proof of loss, under special and exceptional circumstances, such as nonresidence, death, absence, insanity, and illness where it is impossible for him to do so, it may be signed and sworn to by an agent having charge of the business, property, or insurance,' or party to whom loss payable, where person really intended by the insurance company, under special circumstances, as the insured2 mortgagee to whom loss payable, and "mortgagee clause," when owner refuses or unable; if insured be dead, his executor named in will or administrator, even before probate or issue of letters, or any of his legal representatives, which might be construed to mean not only executors and administrators, but heirs, next of kin, legatees, or devisees; in case of a partnership, the signing and oath by one of the partners is sufficient, or by any one who is the "insured " or legal representative as successor to a trustee or assignee with consent of the company, may be furnished by a receiver in bankruptcy under specific authority from the court.8

6

1. Lumbermen's Mutual Ins. Co. v. Bell, 166 Ill. 400, 45 N. E. Rep. 130; Firemen's Fund Ins. Co. v. Sims, 115 Ga. 939. 42 S. E. Rep. 269; German Ins. Co. v. Grunert, 112 Ill. 68; Roberts v. Northwestern Nat. Ins. Co., 90 Wis. 210, 62 N. W. Rep. 1048; Burns v. Michigan Manufacturers' Ins. Co., 130 Mich. 561, 90 N. W. Rep. 411; Sims v. State Ins. Co., 47 Mo. 54; O'Connor v. Hartford Ins. Co., 31 Wis. 160; People v. Liverpool, L. & G. Ins. Co., 2 T. & C. 268, 273. And see Findeisen v. Metropole Ins. Co., 57 Vt. 520; Ayres v. Hartford Ins. Co., 17 Iowa, 176; Swan v. Liverpool, L. & G. Ins. Co., 52 Miss. 704; Burge v. Greenwich Ins. Co., Mo. App. 80 S. W. Rep. 342; Pearlatine v. Westchester Ins. Co., S. C. S. E. Rep. 4.

49

2. Warren v. Springfield F. & M. Ins. Co., 13 Tex. Civ. App. 466, 35 S. W. Rep. 810; Milwaukee Mechanics' Ins. Co. v. Brown, 3 Kans. App. 225, 44 Pac. Rep. 35.

3. Graham v. Firemen's Ins. Co., 8 Daly, 421; Southern Home B. & L. Assoc. v. Home Ins. Co., 94 Ga. 170, 21 S. E. Rep. 375, 24 S. E. Rep. 396; Lombard Investment Co. v. Dwelling-House Ins. Co., 62 Mo. App. 315. And see Nickerson v. Nickerson, 80 Me. 100; State Ins. Co. v. Ketcham, 9 Kans. App. 552, 58 Pac. Rep. 229. And see "Mortgagor and Mortgagee."

4. Matthews v. American Central Ins. Co., 9 App. Div. 339, 344, 41 N. Y. Supp. 304, affd., 154 N. Y. 449; Meyerson v. Hartford Ins. Co., 16 Misc. 286, 38 N. Y. Supp. 112.

5. Matthews v. American Central Ins. Co., supra. And see Farmers' Ins. Co. v. Graybill, 74 Pa. St. 17.

6. Myers v. Council Bluffs Ins. Co., 72 Iowa, 176, 33 N. W. Rep. 453. And see Karelsen v. Sun Fire Office, 122 N. Y. 545, 25 N. E. Rep. 921; Marthinson v. North B. & M. Ins. Co., 64 Mich. 372, 31 N. W. Rep. 291.

7. Wolcott v. Sprague, 55 Fed. Rep. 545; Cornell v. Le Roy, 9 Wend. 163; De Witt v. Agricultural Ins. Co., 89 Hun, 229, 36 N. Y. Supp. 570. And see "Mortgagor and Mortgagee." 8. Sims v. Union Assur. Soc., 129 Fed. Rep. 804.

It is not clear, in New York, as to when or under what circumstances statement or proof of loss may be made and furnished by a mortgagee or party to whom the loss is payable. It has been twice decided by the lower courts that under exceptional circumstances they may be so furnished. Armstrong v. Agricultural Ins. Co., 56 Hun, 399; Moore v. Hanover Ins. Co., 71 Hun, 199. Both of these cases were reversed by the Court of Appeals (130 N. Y. 560, 141 N. Y. 219), without passing upon or deciding this point expressly. In the absence of a mortgagee clause, the opinion of the Court of Appeals in Moore v. Hanover Ins. Co., 141 N. Y. 219, would seem to be adverse to the right of any other than the assured to make and swear to the proofs. And that it may be impossible for a mere appointee to receive the loss, to comply with the condition is recognized by the Court of Appeals in Graham v. Phoenix Ins. Co., 77 N. Y. 171, 177. Of course, when the policy is issued to and covers both interests, both are the insured, so either may, under such circumstances, make the proofs. Graham Phoenix Ins. Co., 17 Hun, 156. Whenever the mortgagee's interest is insured, or whenever he procures the insurance solely for his own benefit, without privity or authority of the owner

V.

and mortgagor, although policy may in form be issued to and in name of latter as the assured, with loss payable to the mortgagee, the company knowing the facts, the mortgagee, being substantially the party solely insured, may make the proofs. Pratt v. New York Central Ins. Co., 55 N. Y. 505. This case, however, would seem to have been really decided upon a question of waiver, as the proofs were made out as directed by company's officers, and were retained without objection. See and compare Graham v. Phoenix Ins. Co., 77 N. Y. 171, supra. See also "Mortgagor and Mortgagee."

RULE 17.

Duty of Mortgagee.

Unless the mortgagee clause attached makes it obligatory on the mortgagee to furnish proofs of loss, he is not required to furnish such proofs as a condition precedent to his right of action on the policy; the failure of the mortgagor and owner to furnish such proofs, either wholly or within the stipulated time, constitutes one of the neglects, from the invalidating consequences of which the mortgagee is exempted.

Glens Falls Ins. Co. v. Porter, 44 Fla. 568, 33 So. Rep. 473; Northern Assur. Co. v. Chicago B. & L. Assoc., 98 Ill. App. 152, affd., 198 Ill. 474, citing Queen Ins. Co. v. Dearborn Savings Assoc., 175 Ill. 115.

This rule is probably operative in those States only which have adopted the exceptional rule of construction that the mortgagee clause, when attached, is operative only to the extent that it incorporates and specially includes in it the conditions of the policy. See "Mortgagor and Mortgagee." In Missouri the rule is held otherwise so far as the obligation to furnish proofs of loss is concerned. See Lombard Investment Co. v. Dwelling-House Ins. Co., 62 Mo. App. 315. And see Shapiro r. Western Home Ins. Co., 51 Minn. 239, 53 N. W. Rep. 463, 22 Ins. L. J. 310.

RULE 18.

Attaching Creditor.

An attaching creditor by obtaining testimony of assured and others may substantially comply with the condition requiring proofs.

Northwestern Ins. Co. v. Atkins, 66 Ky. 328.

RULE 19.

When Policy Taken Out for Benefit of Insured and Other Owners.

Where the policy is taken out in name of one person or party for benefit of himself and other owners, it is not necessary for all to join in the proof of loss.

Walsh v. Washington Ins. Co., 32 N. Y. 427.

RULE 20.

When Loss Made Payable to a Third Party.

When loss is merely made payable to a third party, the assured must make and furnish the statement or proofs of loss.

State Ins. Co. v. Maackens, 38 N. J. L. 565; Spooner v. Vermont Ins. Co., 53 Vt. 156. And see Moore v. Hanover Ins. Co., 141 N. Y. 219, and Rule 16.

RULE 21.

Substantial Compliance Sufficient.

Substantial compliance with the clause in reference to the statement or proof of loss, as nature of the case and circumstances will admit, is all that is required;1 for instance, the number and weight of bales of cotton and value in the aggregate;2 statement that no per