ington, 66 Tex. 103; Pennsylvania Co. for Insurance on Lives v. Philadelphia Contributionship, 51 Atl. 351; Hewins et al. v. London Assurance, 68 N. E. 62. In this last case the court distinguished between policies containing a provision that the company shall not be liable, beyond the actual value destroyed by fire, for loss occasioned by law regulating construction or repair of buildings, and those policies which contain no reference to building laws. Also see McCready v. Hartford Fire Ins. Co., 70 N. Y. Supp. 778; Providence-Washington Ins. Co. v. Board of Education, 38 S. E. 679; Larkin v. Glens Falls Ins. Co., 83 N. W. 409. In this last case the court holds that a contract of insurance upon property within the fire limits of a city, and of a class the repair of which is, under certain conditions, prohibited by city ordinances, is presumed to have been entered into with reference to such ordinances, and that recovery may be had as for a total loss when the repair of the building insured and damaged is prevented under and by reason of such ordinances, the value of what remains of a building after the fire, over and above the cost of removing it from the premises, being deducted therefrom. When property has been condemned by civil authorities and is destroyed by fire before being torn down or removed, the insured is entitled to recover the full value of the property, the same as though no condemnation proceedings had been had. Collingridge v. Royal Exchange Assur. Co., 3 Q. B. D. 173. One in possession of property under a verbal agreement for its use during his life, may insure the property as his own and recover the full insurance value thereof. Berry v. American Cent. Ins. Co., 132 N. Y. 49. A tenant for years under a valid lease, who has insured the building for his own benefit, is alone entitled to recover on a policy for loss by fire. Greech v. Richards, 76 Ga. 36; Allen v. Sun Mut. Ins. Co., 36 La. Ann. 767. These cases will be sufficient to inform you as to how the measure of damage is arrived at in case of loss of building or personal property. Many of the States have, however, a statute known, in insurance parlance, as "valued policy law." What this law is can best be expressed by quoting to you the provisions of the Wisconsin law, which are as follows: "Whenever any policy of insurance shall be written to insure any real property, and the property insured shall be wholly destroyed, without criminal fault on the part of the insured or his assigns, the amount of the insurance written in such policy shall be taken conclusively to be the true value of the property when insured, and the true amount of loss and measure of damages when destroyed." A few of the States have not gone as far as this, but have made the amount written in the policy prima facie the amount of loss, thus casting the burden of showing the actual loss (if less than the amount written in the policy) upon the company. The question of what will amount to a total loss under this law has been often before the courts. In Oshkosh Packing and Provision Co. v. Mercantile Ins. Co., 31 Fed. 200; 16 Ins. L. J. 801, the court, after quoting the law, says: "The expression, 'wholly destroyed,' in this statute, is equivalent to total loss; and total loss, as applicable to a building, means not that the materials of which it is composed were all utterly destroyed or obliterated, but that the building, though some part of it remain standing, has lost its identity and specific character as a building, and instead thereof has become a broken mass, or so far in that condition that it can not be properly any longer designated as a building. When that has occurred, then, there is a total destruction or loss, or, as it is said in one of the authorities which treats of the question, a total loss does not mean an absolute extinction. The question is not whether all the parts and material composing the building are absolutely or physically destroyed, but whether, after the fire, the thing insured still exists as a building." In Missouri it has been held that "a building is wholly destroyed within the meaning of Mo. Rev. St. fixing the measure of damage, only when no part of it above ground remains intact and substantially uninjured so that it can be utilized in effectually restoring the structure in its entirety." Ampleman v. Citizens' Ins. Co., 35 Mo. App. 308; Id. v. North British and M. Ins. Co., 35 Mo. App. 317; Havens v. Germania Fire Ins. Co., 123 Mo. 403. In this last case there were several policies of insurance. The company insisted that the statute had no application to cases of concurrent insurance, but governs only in cases of single policies. Upon this the court says: "This last contention we regard as untenable. We hold that where several concurrent policies of insurance upon real property have been written with the consent of the respective companies, and the property is wholly destroyed by fire, the aggregate amount of such insurance must, under Section 6009, Rev. St. 1879, be taken conclusively to be the true value of the property insured and the true amount of the loss and measure of damage when so destroyed. We think there can be no valid reason why the mere fact that several companies assume each a part of the whole risk should affect the operation of the statute," citing Barnard v. National Fire Ins. Co., 38 Mo. App. 106; Oshkosh, etc., Co. v. Germania Fire Ins. Co., 71 Wis. 454; Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578. In German Ins. Co. v. Eddy, 36 Neb. 461, it was held that, if the debris from the destroyed building was of value and was retained by the insured, the company would be entitled to credit therefor. For leading article on "Wholly Destroyed," see 33 Central L. J. 319. For leading article discussing damages where insured has limited interest in the property, see Harvard Law Review 512. Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. The discussion of this provision of the policy will be taken up later, under the provision relating to appraisal, found in lines 86 to 91 of the policy, and the provision relating to the payment of losses, found in lines 92 to 95 of the policy. It shall be optional, however, with this company to take all, or any part, of the articles, at such ascertained or appraised value, and also to repair, rebuild or replace the property lost or damaged with other of like kind and quality, within a reasonable time, on giving notice within thirty days after the receipt of the proof herein required of its intention so to do; but there can be no abandonment to this company of the property described. The first part of this provision of the policy, namely, "It shall be optional, however, with this company to take all or any part, of the articles, at such ascertained or appraised value," needs no comment. This is one of the provisions of the policy, and, I believe, the only one which the courts have never been called upon to construe. The second part of the provision, which is generally referred to as the repair or rebuilding clause, has been often before the courts. The provision gives the company the right of paying the loss in two ways: (1) In cash; (2) by replacing the lost or damaged property. If the company elects to pay the loss in the latter way, and so notifies the insured, the contract of insurance is thus converted into a building contract. Morrell v. Irving Fire Ins. Co., 33 N. Y. 429. Heilmann v. Westchester Fire Ins. Co., 75 N. Y. 7; 8 Ins. Wynkoop v. Niagara Fire Ins. Co., 91 N. Y. 478; 12 Ins. Good v. Buckeye Mut. Fire Ins. Co., 43 Ohio St. 394. Hartford Fire Ins. Co. v. Peebles Hotel Co., 82 Fed. 546. As said by the Court of Appeals of New York (Morrell v. Irving Fire Ins. Co., supra), where the company had notified the insured of its election to rebuild: "The contract, then, became one for rebuilding, and the obligation which looked to the payment of the money became obsolete and inapplicable, and the case then became the same which it would have been if the contract had obliged the defendant simply to rebuild, in case of loss." If the company fails to rebuild, after notifying the insured of its election to rebuild, the action of insured must (in some States) be based upon the failure of the company to perform its contract to rebuild, and not for the amount named in the policy. Beals v. Home Ins. Co., 36 N. Y. 429. American Cent. Ins. Co. v. McLanathan, 11 Kans. 533; 2 Ins. L. J. 907. To the contrary is the opinion of the Supreme Court of Illinois, in the case of Home Mut. Fire Ins. Co. v. Garfield, 60 Ill. 124; 1 Ins. L. J. 844. In that case the directors of the company notified the insured of their election to rebuild. They delayed in exercising the option, and the insured brought suit upon the policy. In passing upon the right of the insured, the court says: "It is assumed that this notice changed the policy, changed the entire character of the contract, and that thereby the company agreed to replace the property destroyed without any reference to the amount of the cost. It is urged that the policy is in the nature of an alternative contract, and that the company, in giving the notice and making the election, made it an absolute contract to rebuild, and having failed to rebuild, became liable for all damages for breach of such contract. The policy is not in the alternative to pay a sum of money or to rebuild the house. The language is 'to pay' the sum insured, unless the 'directors shall determine to rebuild. It is equivalent to saying it will pay a sum certain if it fail to rebuild. The company merely reserved the right to replace the property to avoid the payment of the money. Its liability was for the money, to be discharged by the performance of some other act. This conduct on the part of the company, in giving notice, should be looked upon with disfavor, unless good faith is manifested in all its subsequent proceedings. Upon its determination to rebuild, it should proceed immediately with the work, or be held for the insurance. Upon a lapse of a reasonable time after due notice to rebuild, without prompt measures for such purpose by the company, it is liable for the amount of the policy and interest.' In Langan v. Ætna Ins. Co., 99 Fed. 374, the court held that the policy was not converted into a building contract by notice of the company of its election to rebuild or repair, but that the failure of the company so to do left the policy unchanged, and insured was entitled to demand in money the sum due upon it. The measure of damage on the failure of the company to carry out its election to rebuild, is the amount it will cost to rebuild, or, if the company has commenced work and abandoned it, the cost of completing the work, although the cost may exceed the amount named in the policy. Henderson v. Niagara Fire Ins. Co., 91 N. Y. 478; 12 Ins. Fire Ass'n v. Rosenthal, 108 Pa. 478; 15 Ins. L. J. 658. In Fire Ass'n v. Rosenthal, supra, the court held that the company is bound to use brick, if the city ordinances so require, although the original material of the structure was not brick; and if the company fails thus to rebuild with brick, the insured may recover as damages the cost of repairing with brick. The rental value may be taken into consideration in fixing the damages for delay in rebuilding. Fire Ass'n v. Rosenthal, 108 Pa. 474, 15 Ins. L. J. 658. If the company proceeds with all due diligence to rebuild, there can be no claim for loss of rent. St. Paul F. and M. Ins. Co. v. Johnson, 77 Ill. 598; 6 Ins. The fact that the insurance is for the benefit of a life tenant can not affect the right of the company to rebuild. Quarles v. Clayton, 87 Tenn. 308. Nor the fact that the loss is payable to a third party. Heilmann v. Westchester Fire Ins. Co., 75 N. Y. 7; 8 Ins. The company must notify the insured of its election to rebuild or repair during the time within which it has to pay the loss; and, failing so to do, it can not, after payment of the loss has become due, exercise its rights under the policy. Maryland Home Fire Ins. Co. v. Kimmel, 43 Atl. 764; 28 If a company elects to reinstate, and is proceeding to do so, and the municipal authorities cause the building to be taken down, as dangerous, the company is not thereby released from liability, although the dangerous condition of the building was not occasioned by the fire. Having elected to reinstate, it must either do so or pay damages for not doing so. Brown v. Royal Ins. Co., 1 Ell. & Ell. 853 (Eng.) As to right and liabilities of companies under this clause, where there are two or more policies on the building, see: Morrell v. Irving Fire Ins. Co., 33 N. Y. 429. Good v. Buckeye Mut. Fire Ins. Co., 43 Ohio St. 394. Hartford Fire Ins. Co. v. Peebles Hotel Co., 82 Fed. 546. If, after loss, the insured immediately proceeds to rebuild, and refuses to allow the company to do so, after notice, all their liability under the policy ceases. Beals v. Home Ins. Co., 36 N. Y. 522. Good v. Buckeye Mut. Fire Ins. Co., 43 Ohio St. 394. Promise by company to pay the loss when adjusted is waiver of right to rebuild. Elliott et al. v. Merchants' and D. Ins. Co., 79 N. W. 452; Platt v. Ætna Ins. Co., 153 III. 113; 38 N. E. 750; 24 Ins. Lancashire Ins. Co. v. Barnard, 49 C. C. A. 559; 11 Fed. 702. L. J. 943. In McAllaster v. Niagara Ins. Co. (N. Y. S. C.), 32 N. Y. Supp. 535, 84 Hun. 322, the company notified the insured within thirty days after an award, but more than thirty days after receipt of proofs, of its intention to rebuild. The insured disputed the right of the company to rebuild, and that, if it proceeded with the re |