RULE 4.

Does not Apply to Reinsurance Contracts.

The limitation clause in the policy does not apply to reinsurance contracts; or at least does not begin to run until the reinsured company has paid the loss under the original policy issued by it.2

1. Alker v. Rhoads, 73 App. Div. 158, 76 N. Y. Supp. 808, citing Jackson v. St. Paul F. & M. Ins. Co., 99 N. Y. 124. 2. Royal Ins. Co. v. Vanderbilt Ins. Co., 102 Tenn. 264, 52 S. W. Rep. 168, 28 Ins. L. J. 910.

RULE 5.

Operation Suspended by War.

War suspends the operation of the limitation clause;1 and so does a statute which in terms prohibits the maintenance of an action.2

1. Semmes v. City Ins. Co., 13 Wall. (U. S.) 158. 2. North British & M. Ins. Co. v. Edwards,

Miss.

37

So. Rep. 748.

RULE 6.

Does not Apply to Independent Agreement to Pay. The limitation clause in the policy is not operative upon a distinct and independent agreement to pay the amount of the loss in consideration of the surrender and cancellation of the policy.

Smith v. Glens Falls Ins. Co., 62 N. Y. 85. And see Illinois Ins. Co. v. Archdeacon, 82 Ill. 236; Hanover Ins. Co. v. Hatton (Ky.), 55 S. W. Rep. 681.

RULE 7.

An Adjustment and Promise to Pay the Amount of an Adjustment Do not Mean Same Thing.

An adjustment of the amount of a loss by the assured and an insurance company does not raise an implied promise to pay it; there must be an express prom

ise to pay the amount of the adjustment, to create a new liability, and make it independent of the limitation clause in the policy.

Willoughby v. St. Paul German Ins. Co., 68 Minn. 373, 71 N. W. Rep. 272, 27 Ins. L. J. 252.

RULE 8.

Effect of Death of Insured.

Where the assured is dead at time of fire, and leaves a will, which is contested, it is the duty of the executor named in the will, or of some one interested in the policy, to promptly apply for the appointment of a temporary administrator, that proper notice of loss may be given, proofs furnished, and suit commenced within the limited time, by him, if necessary; if no effort made in that direction there is no excuse for such delay and action is barred by the limitation clause.

Mathews v. American Central Ins. Co., 154 N. Y. 449, 48 N. E. Rep. 751, 27 Ins. L. J. 193, 39 L. R. A. 433, affg. 9 App. Div. 339, 41 N. Y. Supp. 304.

RULE 9.

When Binding upon Mortgagee

Waiver.

The limitation clause is binding upon the mortgagee to whom loss is payable, as well as upon the insured, notwithstanding a mortgagee clause; but otherwise where policy provides that " if issued upon interest of mortgagee, assured must first exhaust primary security before he can recover the insurance; in such a case the limitation clause is inoperative, and ordinary statute of limitation applies,2 or the time to sue is extended. Payment to a mortgagee to whom the loss is

payable does not waive the limitation as against the insured.1

1. American Bldg. & Loan Assoc. v. Farmers' Ins. Co., 11 Wash. 619, 40 Pac. Rep. 125, 24 Ins. L. J. 838. And see Shawnee Ins. Co. v. Bayha, 8 Kans. App. 169, 55 Pac. Rep. 474. 2. Dwelling-House Ins. Co. v. Kansas Loan & Trust Co., 5 Kans. App. 137, 48 Pac. Rep. 891, 26 Ins. L. J. 603.

3. Hay v. Star Ins. Co., 13 Hun, 496, affd., 77 N. Y. 235. 4. King v. Watertown Ins. Co., 47 Hun, 1, affd., 132 N. Y. 338.

RULE 10.

Runs from Date of Fire.

Where policy so provides the limitation runs from the date of the fire, and not from date when loss is ascertained or becomes payable.

Hart v. Citizens' Ins. Co., 86 Wis. 77, 56 N. W. Rep. 332, 23 Ins. L. J. 32; Chichester v. New Hampshire Ins. Co., 74 Conn. 510, 51 Atl. Rep. 545; Eagan v. Oakland Ins. Co., 29 Oreg. 403, 42 Pac. Rep. 990, 25 Ins. L. J. 534; Daly v. Concordia Ins. Co., 16 Colo. 349, 65 Pac. Rep. 416; Prevost v. Scottish Union & Nat. Ins. Co., Rap. Jud. Quebec, 14 C. S. 203; State Ins. Co. v. Stoffels, 48 Kans. 205, 29 Pac. Rep. 479; Allemannia Ins. Co. v. Little, 20 Ill. App. 431; King v. Watertown Ins. Co., 47 Hun, 1; Allen v. Dutchess Co. Ins. Co., 95 App. Div. 86, 88 N. Y. Supp. 530. And the distinction in use of word" fire” instead of "loss" is pointed out in Steen v. Niagara Ins. Co., 89 N. Y. 324; Hocking v. Howard Ins. Co., 130 Pa. St. 170. This rule does not apply in some courts and jurisdictions. See Rule 11.

RULE II.

Does not Commence to Run Until Loss is Payable.

The clause making the time to commence suit from occurrence or date of the fire makes no substantial difference in the meaning as formerly construed when the word "loss" was used instead of "fire." The clause must be construed as intending to give twelve full months in which to bring suit, exclusive of the

time when under other clauses of the policy suit cannot be brought. The right to commence suit being postponed to sixty days after proofs of loss are furnished, the twelve months' limitation does not commence to run until after the expiration of the sixty days;1 and so is suspended by the pendency or continuance of an appraisal.2

1. Steel v. Phoenix Ins. Co., 51 Fed. Rep. 715, 7 U. S. App. 325, 2 C. C. A. 463, revg. 47 Fed. Rep. 863, and affirmed by divided court without opinion, 154 U. S. 518, 14 Sup. Ct. Rep. 1153, 38 L. ed. 1064; Friezen v. Allemannia Ins. Co., 30 Fed. Rep. 352; Vette v. Clinton Ins. Co., 30 Fed. Rep. 668; Sample v. London & Lancashire Ins. Co., 46 S. C. 491, 24 S. E. Rep. 334, 25 Ins. L. J. 576; Insurance Co. v. Scales, 101 Tenn. 628, 49 S. W. Rep. 743; German Ins. Co. v. Davis, 40 Nebr. 700, 59 N. W. Rep. 698, 23 Ins. L. J. 768; Harrison v. Hartford Ins. Co., 112 Iowa, 77, 80 N. W. Rep. 309; Reade v. State Ins. Co., 103 Iowa, 307, 72 N. W. Rep. 665. And see Case v. Sun Ins. Co., 83 Cal. 473, 23 Pac. Rep. 534; Hong Sling v. Royal Ins. Co., 8 Utah, 135; Putze v. Saginaw Valley Ins. Co., 132 Mich. 670, 94 N. W. Rep. 191, reversing on rehearing previous opinion, 86 N. W. Rep. 814. (But this rule does not apply in some jurisdictions. See Rule 10.) Whenever a policy in terms provides that limitation runs from "date of loss or occurrence of loss," it is construed as the date when the loss accrues or becomes payable. New Haven Steamboat Co. v. Providence-Washington Ins. Co., 10 App. Div. 284; dissenting opinion of Barrett, J., adopted by the Court of Appeals in reversing judgment, 159 N. Y. 547; Rogers v. Ætna Ins. Co., 95 Fed. Rep. 103, 35 C. C. A. 396, 28 Ins. L. J. 808; Rogers v. Home Ins. Co., 95 Fed. Rep. 109, 35 C. C. A. 402; Mayor v. Hamilton Ins. Co., 39 N. Y. 45; Steen v. Niagara Ins. Co., 89 N. Y. 315; Hay v. Star Ins. Co., 77 N. Y. 235; Miller v. Hartford Ins. Co., 70 Iowa, 704; Murdock v. Franklin Ins. Co., 33 W. Va. 407, 10 S. E. Rep. 777; Sun Ins. Co. v. Jones, 54 Ark. 376, 15 S. W. Rep. 1034; German Ins. Co. v. Fairbank, 32 Nebr. 750, 49 N. W. Rep. 711; Chandler v. St. Paul Ins. Co., 21 Minn. 85; Barber v. Insurance Co., 16 W. Va. 658. But the courts do not agree in construction of such language, and some hold that the "loss occurs " when the fire occurs. Brooks v. Georgia Home Ins. Co., 99 Ga. 116, 24 S. E. Rep. 869; Chambers v. Atlas Ins. Co., 51 Conn. 17; Carraway v. Merchants' Ins. Co., 26 La. Ann. 298; Johnson v. Humboldt Ins. Co., 91 Ill. 92; Fullam v. New York

Ins. Co., 7 Gray (Mass.), 61; Travelers' Ins. Co. v. California Ins. Co., 1 N. D. 151; Grigsby v. German Ins. Co., 40 Mo. App. 276; Rothier v. German Ins. Co., 84 Minn. 116, 86 N. W. Rep. 888. See also McFarland v. Association, 5 Wyo. 126, 38 Pac. Rep. 347, 27 L. R. A. 48.

2. Fritz v. British-American Assur. Co., 208 Pa. St. 268, 57 Atl. Rep. 573.

RULE 12.

When Time Expires on Sunday.

If the limited time expires on Sunday, the assured has the following day, Monday, to commence his action; the date fire occurred is excluded in calculation; but if the fire extends over into another day, such additional day must be included.3

1. Owen v. Howard Ins. Co., 87 Ky. 571.

2. Dwelling-House Ins. Co. v. Osborn, 1 Kans. App. 197. 3. Allemannia Ins. Co. v. Little, 20 Ill. App. 431.

RULE 13.

Computation of Time in Months.

When time limited in policy expires a certain number of months from the date of the fire, such time has reference to calendar months, and expires on the same day of the month as fire occurred, and counting the number of months prescribed, excluding the month in which the fire occurred.

Daly v. Concordia Ins. Co., 16 Col. 349, 65 Pac. Rep. 416.

RULE 14.

Effect of Attempt to Commence Action Under a Statute. Practically the limitation prescribed in a standard form is one specially prescribed by law, as well as by contract, and hence a statute providing that an attempt to commence an action by delivery of process to a