Court, 24 Ky. Law Rep. 1850, 115 Ky. 109, 72 S. W. 739). But evidence is not admissible to show what it would cost to replace the property destroyed.

Palatine Ins. Co. v. Weiss, 22 Ky. Law Rep. 994, 109 Ky. 464, 59 S. W. 509; Hartford Fire Ins. Co. v. Bourbon County Court, 24 Ky. Law Rep. 1850, 115 Ky. 109, 72 S. W. 739.

Where a wall of a building had been bolted to a similar one of an adjoining building, thereby making a double wall, it is proper to show, as bearing on the question of total loss, that the double wall remaining was not suitable to be utilized, in place, in restoring both buildings (Northwestern Mut. Life Ins. Co. v. Rochester German Ins. Co., 85 Minn. 48, 88 N. W. 265, 56 L. R. A. 108). A valued policy law does not affect the character of evidence admissible on the issue as to whether a loss was total (Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797). In Hartford Fire Ins. Co. v. Bourbon County Court, 24 Ky. Law Rep. 1850, 115 Ky. 109, 72 S. W. 739, it was held that photographs of a building, though they seemed to bear out the theory that the building was not totally destroyed, were inconclusive, where some of the witnesses testified that the condition of the walls was such that they must be torn down-a fact which an examination of the photographs gave no intimation of. And in Northwestern Mut. Life Ins. Co. v. Rochester German Ins. Co., 85 Minn. 48, 88 N. W. 265, 56 L. R. A. 108, it was held that the evidence did not conclusively show a total loss. Ordinarily, it is a question of fact for the jury whether a loss was total or partial (Liverpool & L. & G. Ins. Co. v. Heckman, 64 Kan. 388, 67 Pac. 879). And where there is evidence to the effect that the walls of the building left standing after the fire were in good condition for rebuilding, and could have been utilized for that purpose, it is error to direct a verdict for plaintiff on the ground that he has suffered a total loss (Poppitz v. German Ins. Co., 85 Minn. 118, 88 N. W. 438). An instruction that if there remained "any substantial or considerable portion of the walls" that could be used for rebuilding, etc., "the building was not wholly destroyed," was in Ampleman v. North British & Mercantile Ins. Co., 35 Mo. App. 317, held to be misleading, as permitting too great a latitude of construction.

2. LIMITATION OF LIABILITY BY CHARTER OR BY POLICY.

(a) Limitation of liability by charter or by-laws.

(b) Limitation of liability by provisions in policy.

(c) Same-Effect of valued policy law.

(d) Limitation of liability as to class of property insured.

(e) Limitation of liability to amount of assessment.

(a) Limitation of liability by charter or by-laws.

Though a mutual insurance company is authorized to insure property only to a certain proportion of its value, the company is nevertheless bound by the valuation agreed upon when the policy is issued, in the absence of fraud, and is liable for the whole amount of the insurance in a case of a total loss; and this is true even if there is an overvaluation.

Fuller v. Boston Mut. Fire Ins. Co., 4 Metc. (Mass.) 206; Phillips v. Merrimack Mut. Fire Ins. Co., 10 Cush. (Mass.) 350.

If there is an undervaluation, so that on the face of the policy the insurance exceeds the proportion permitted, the insured is also bound by the valuation, and can only recover the proportion allowed, based on such valuation (Holmes v. Charlestown Mut. Fire Ins. Co., 10 Metc. [Mass.] 211, 43 Am. Dec. 428). However, where it is provided that the company may have a revaluation in case of a loss, the insured can recover only the specified proportion of the value at the time of the loss (Post v. Hampshire Mut. Fire Ins. Co., 12 Metc. [Mass.] 555, 46 Am. Dec. 702). So, where it is provided that the directors shall determine the amount to be insured, not exceeding a certain proportion of the value of the property, and that in case of a loss the insured shall furnish an account of the property lost or damaged, with the value thereof at the time of loss, the insurance company is not bound by an overvaluation at the time the contract was entered into, so as to be liable on the basis thereof (Atwood v. Union Mut. Fire Ins. Co., 28 N. H. 234). And under this rule the insured can, in case of a total loss, recover the full amount of the insurance, if such amount does not exceed the proportion authorized, based on the value of the property at the time of loss, though it does exceed such proportion when based on the valuation stated in the application (Huckins v. People's Mut. Fire Ins. Co., 31 N. H. 238).

By-laws of an insurance company, rendering it liable for such

proportion of the loss as the amount insured by it bears to the whole amount insured on the goods, will not reduce the recovery of one insured under a policy issued for the whole amount of the goods insured by it (Lattomus v. Farmers' Mut. Fire Ins. Co., 3 Houst. [Del.] 254). So, a constitutional provision that in case of other insurance the company shall pay only its pro rata share of two-thirds of the value of the property does not limit the company's liability on a certificate providing that a loss shall be paid, not exceeding a certain sum, where there is no other insurance (Reavis v. Farmers' Mut. Fire Ins. Co., 78 Mo. App. 14). But under a by-law of a company providing that it shall not be liable for a greater amount on any one building, and the contents thereof, than $6,000, a landlord and his tenant holding separate policies cannot recover more than $6,000, though their two policies, and the loss thereon, exceed $6,000 (Shoemaker v. Line Lexington Mut. Ins. Co., 15 Montg. Co. Law Rep'r [Pa.] 192). However, where there is no restriction in the charter, and the contracts are made by the company with full knowledge of the excess, and assessments on the whole amount are accepted for many years, the company will be liable for the full amount of the policies (Shoemaker v. Line Lexington Mut. Fire Ins. Co., 16 Montg. Co. Law Rep'r [Pa.] 162, 16 Pa. Super. Ct. 18). A provision in a constitution of a mutual insurance company, that "no risk shall be taken in no case to exceed two-thirds of the cash value of the property insured," means that no risk shall be taken in any case to exceed two-thirds of the cash value of the property insured (Reavis v Farmers' Mut. Fire Ins. Co., 78 Mo. App. 14).

(b) Limitation of liability Ly provisions in policy.

Policies of insurance often contain provisions limiting the insurance to a certain propcrtion of the value of the property insured, or the amount of recovery on a partial loss to the proportion which the insurance bears to the value of the property at the time of loss. With reference to a condition in an open policy that the insurer should be liable only for such proportion of the loss as the insurance bore to the value of the property at the time of loss, it was said in Christian v. Niagara Fire Ins. Co., 101 Ala. 634, 14 South. 374, that the condition was neither unreasonable nor unjust, though it might happen that a recovery on an open policy containing the condition would, under some circumstances, not be commensurate with the premiums paid. And the fact that a clause limiting the in

surer's liability to two-thirds of the value of the property insured was in fine print, and was not discovered by the holder of the policy until after loss, has been held not to deprive the insurance company of the benefit of such clause (Ervin v. New York Cent. Ins. Co., 3 Thomp. & C. [N. Y.] 213). A limitation in an application made a part of a policy is likewise binding on the insured. Thus, it was held in Egan v. Mutual Ins. Co., 5 Denio (N. Y.) 326, that where an application, referred to in a policy of insurance as forming a part thereof, provided that the insurers should only be obliged to pay as if they had insured two-thirds of the actual cash value of the property, a recovery for a loss should be limited to the proportion stated. So, a limitation of liability in a vacancy permit during the continuance of the vacancy will be binding on insured as a reasonable condition (Sullivan v. Germania Fire Ins. Co., 89 Mo. App. 106). And a stipulation limiting the insurer's liability, added to the policy subsequent to its delivery, is binding on the insured if supported by a sufficient consideration (Kattelmann v. Fire Ass'n of Philadelphia, 79 Mo. App. 447).

Where a policy provides that the company's liability shall not exceed a certain proportion of the actual cash value of the property at the time of loss, the company is not bound by the valuation in the application on which the policy was issued, unless the policy contains a proviso to that effect (Brown v. Quincy Mut. Fire Ins. Co., 105 Mass. 396, 7 Am. Rep. 538). And a limitation clause in a policy governs an insuring clause in the policy providing for insurance against loss to an amount not exceeding the amount of the policy, so that the insurer will be liable for only the specific proportion of the value of the property up to the face value of the policy (Millis v. Scottish Union & National Ins. Co., 95 Mo. App. 211, 68 S. W. 1066).

Where a policy limited the insurance to an amount not exceeding the sum stated in the policy, nor more than two-thirds of the actual destructible value of the building, and the same provision was contained in a condition annexed, as also in a by-law of the company, both being referred to and made a part of the contract, the insured could not recover more than two-thirds of the value of the building destroyed, though another condition annexed provided that “in settling a loss the damage is to be paid in full," not exceeding the whole amount insured, and "is to be estimated according to the fair value of the property" (Blinn v. Dresden Mut Fire Ins. Co., 85 Me. 389, 27 Atl. 263). And where a policy pro

vided that "in case of a total loss the company is not liable to pay more than two-thirds of the actual value of the building at the time of the loss, nor more than one-half the value of the personal property," the insured could, in case of total loss, recover only one-half the value of personal property, it being held that the words "at the time of the loss" were applicable to personal as well as real property (Singleton v. Boone County Home Mut. Ins. Co., 45 Mo. 250). So, where a burglary insurance policy, on jewelry, etc., which contains a proviso that insurer's liability for loss on jewelry shall not exceed, separately or together, $1,000, has attached a special agreement limiting the insurer's liability to $250 on any one article, the first clause, whatever its construction standing by itself, must be read with the second, which operates to limit the liability of the insurer to the sum of $250 on any one article of jewelry (Wormser v. General Acc. Assur. Corp., 87 N. Y. Supp. 974, 94 App. Div. 213). But where an insurance corporation, which had agreed to carry three-fifths of a $50,000 risk offered, afterwards indorsed on the policy that it should, on due notice, cover not exceeding $50,000 on the excess of $50,000 as therein described, the insurer was liable for the whole risk, and not threefifths on the additional $50,000, especially where the subsequent dealings of the parties clearly showed that they so understood its meaning (Corporation of London Assurance v. Paterson, 106 Ga. 538, 32 S. E. 650). And a condition in an open policy limiting the insurer's liability to the deficiency arising on the payment of another policy of prior date was in Stuart v. Columbian Fire Ins. Co., 1 Daly (N. Y.) 471, held not to apply to goods in another policy, intermediate the date of defendant's policy and its inscription thereon. In Home Ins. Co. of New Orleans v. Harrington, 95 Ga. 759, 22 S. E. 666, it was held that provisions in policy "that this company shall be liable only for such proportion of the whole loss as this insurance bears to the cash value of the whole property hereby insured at the time of the fire," and that "this company shall not be liable under this policy for a greater proportion of any loss on the described property than the amount hereby injured shall bear to the whole insurance," were not susceptible of explanation by parol evidence. As the terms of a policy should be construed most favorably to the insured, the words "premises mortgaged," in a provision in a policy that in case of loss the company shall pay to the mortgagee "such proportion of the sum insured as the damage by fire to the premises mortgaged or charged shall bear to the