value immediately before the fire," should be construed to mean so much of the mortgaged premises as was insured at the time of the fire; that is, the building insured, and not the whole lot mortgaged with the building thereon (Teutonia Fire Ins. Co. v. Mund, 102 Pa. 89). A provision in a policy that the insurance recovered shall not exceed two-thirds of the value of the property does not limit a mortgagee to the recovery of two-thirds of the amount, of the mortgage (Sanders v. Hillsborough Ins. Co., 44 N. H. 238). Where a policy provides that damages to property insured shall be borne by the insured and insurers in such proportion as the whole sum insured bears to the whole value of the property insured, the whole value of the property is to be taken to be what the property was actually worth at the time of the damage, not what it was valued at in the application for the policy (Peoria Marine & Fire Ins. Co. v. Wilson, 5 Minn. 53 [Gil. 37]). A petition in an action on a policy in case of a total loss need not make any reference to a three-fourths value clause, as this is a matter of defense (Farmers' Bank v. Manchester Assur. Co., 106 Mo. App. 114, 80 S. W. 299); and, if the insured fails to plead the limitation, the insurer must do so to make it available as a defense (Kattelmann v. Fire Ass'n of Philadelphia, 79 Mo. App. 447). But if a policy sued on is filed with the petition and referred to therein as a part thereof, its stipulations limiting the liability of the insurer are to be considered a part of the petition on demurrer (Hudson v. Scottish Union & National Ins. Co., 23 Ky. Law Rep. 116, 62 S. W. 513, 110 Ky. 722). An instruction which ignores a provision limiting the insurer's liability is, of course, objectionable (American Ins. Co. v. Crawford, 89 Ill. 62). Hence an instruction, in a suit on a policy which limits the insurer's liability to a certain proportion of the value of the property, that, if the jury find the value of the different classes of the property to amount to the insurance thereon, they shall find for plaintiff for the full amount of the insurance, is erroneous (Roberts v. Insurance Company of America, 94 Mo. App. 142, 72 S. W. 144). So, it is error to instruct the jury to find for insured in the amount of the insurance, when it is provided in the policy that the company shall not be liable beyond the actual cash value of the property insured (Westchester Fire Ins. Co. v. Wagner, 10 Tex. Civ. App. 398, 30 S. W 959). B.B.INS.-192 (c) Same-Effect of valued policy law. A clause limiting the liability of the insurer to a certain proportion of the value of the property is, in states having a valued policy law, inoperative as to a total loss. Reference may be made to Phoenix Ins. Co. v. Peak, 20 Ky. Law Rep. 1035, 47 S. W. 1089; Germania Ins. Co. v. Ashby, 65 S. W. 611, 23 Ky. Law Rep. 1564, 112 Ky. 303, 99 Am. St. Rep. 295; Home Fire Ins. Co. v. Bean, 42 Neb. 537, 60 N. W. 907, 47 Am. St. Rep. 711; Insurance Co. of North America v. Bachler, 44 Neb. 549, 62 N. W. 911; Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S. W. 5, 28 L. R. A. 796; Hickerson v. German-American Ins. Co., 96 Tenn. 193, 33 S. W. 1041, 32 L. R. A. 172; Sun Mut. Ins. Co. v. Holland, 2 Willson, Civ. Cas. Ct. App. (Tex.) § 448; Queen Ins. Co. v. Jefferson Ice Co., 64 Tex. 578. Of course, where the valued policy law only applies to insurance on real estate, a stipulation of a policy on personal property limiting the insurer's liability is valid and binding. Hudson v. Scottish Union & National Ins. Co., 62 S. W. 513, 23 Ky. Law Rep. 116, 110 Ky. 722; Queen Ins. Co. v. Jefferson Ins. Co., 64 Tex. 578. In Tennessee it has been held (Burkett v. Georgia Home Ins. Co., 105 Tenn. 548, 58 S. W. 848) that a provision in a policy that the amount of loss or damages shall be estimated according to the actual cash value of the property at the time of the fire, which shall not exceed what it will cost to replace the building, is not in violation of or an evasion of a statute (Acts 1893, c. 107) requiring insurance companies to pay their policy holders the full amount of a loss, not exceeding the insurance, and providing that all stipulations in a policy to the contrary shall be void. But the Wisconsin Supreme Court has taken the position that, under a law (Laws Wis. 1874, c. 347) making the valuation placed upon insured buildings in a policy conclusive on the company in case of loss, stipulations in a policy that the true value shall be proved are unavailing. Reilly v. Franklin Ins. Co., 43 Wis. 449, 28 Am. Rep. 552; Thompson v. So the Texas Court of Civil Appeals has held that under the valued policy law of that state a stipulation in a policy that the 1 Sayles' Civ. St. art. 2971. 1 company issuing it shall be liable for indemnity only, and that the amount of the loss shall in all cases be fixed by agreement or appraisal, is void in case of a total loss (Continental Ins. Co. v. McCulloch, 15 Tex. Civ. App. 190, 39 S. W. 374). A statute 2 providing that stipulations in a policy that the insurer shall not be liable for the full amount insured shall be void cannot be waived by the acceptance of a policy containing such a stipulation (Dugger v. Mechanics' & Traders' Ins. Co., 95 Tenn. 245, 32 S. W. 5, 28 L. R. A. 796).. (d) Limitation of liability as to class of property insured. Where each of several classes of property is insured for a separate amount, each class must be considered separately in determining the amount of recovery (Etna Ins. Co. v. Glasgow Electric Light & Power Co., 107 Ky. 77, 52 S. W. 975). And the insured is entitled to indemnity only out of the particular fund intended to indemnify a loss on the particular property (Carlwitz v. Germania Fire Ins. Co., 5 Fed. Cas. 87). Thus, a recovery on one class of property specifically insured is restricted to the value of the property not exceeding the amount insured thereon (Dwelling House Ins. Co. v. Freeman, 10 Ky. Law Rep. 496). Hence, under a policy of $900, distributed $650 on furniture and $250 on a violin, no more than $650 can be recovered on furniture, though it is worth more than that, and the violin is worth less than $250; or more than $250 on the violin, whatever the value of it and the furniture (Phoenix Ins. Co. v. Pfeifer [Tex. Civ. App.] 39 S. W. 1001). So, where a policy covering different items, each for specific amounts, provides that in case of a loss the insurer shall be liable for only three-fourths thereof, the insurer is liable for only three-fourths of the value of each item separately not exceeding the amount of insurance on such item (Sun Mut. Ins. Co. v. Tufts, 20 Tex. Civ. App. 147, 50 S. W. 180). And neither class, if deficient in value, can be supplemented by excessive loss on the other (Home Ins. Co. v. Adler, 71 Ala. 516). Though a policy on several buildings and on "the hay and grain therein" separately values the buildings, the value of the hay and grain in one barn destroyed, not exceeding the amount insured, may be recovered (Rix v. Mutual Ins. Co., 20 N. H. 198). The policy involved in Cassidy v. Royal Exchange Assur., 99 Me. 399, 59 Atl. 549, covered lumber along 2 Acts Tenn. 1893, c. 107, § 1. side a railroad track, and contained this clause: "This policy to attach in each locality in proportion as the value in each bears to that of all. This clause to be inoperative when the lumber piles. are less than 100 feet apart." The court held that the clause must be construed as a proviso, not as an exception, and that defendant had the burden of proof to show that the loss came within the proviso. In Citizens' Ins. Co. v. Ayers, 88 Tenn. 728, 13 S. W. 1090, the policy contained the clause, "This policy being for $1,000 covers pro rata on each of the following amounts," followed by a list of the articles insured, with the sum for which each was insured, aggregating $3,510. There was no other insurance on the property. It was held that the policy insured each article separately for 1000/8510 of the sum named for it in the list. (e) Limitation of liability to amount of assessment. In the absence of provisions to the contrary, a mutual company is liable in full for a loss to a sum not exceeding the amount of the insurance, and is not limited to the amount derived from an assessment (Harl v. Pottawattamie County Mut. Fire Ins. Co., 74 Iowa, 39, 36 N. W. 880). And though the by-laws of a mutual fire insurance company provide that the funds for the payment of losses shall consist solely of moneys raised by assessments, still, if a policy issued by the company or association is an absolute promise to pay a certain sum in case of loss, it is proper that a judgment against the company should be entered as an absolute money judgment (Byrnes v. American Mut. Fire Ins. Co., 114 Iowa, 738, 87 N. W. 699). Where a mutual policy providing for the payment of full indemnity for a loss, not to exceed the amount insured, limits the insurer's liability to a pro rata payment of the losses in case the total losses and expenses of the company during the year exceed the amount collected on assessment, the burden is on the company to show that the amount realized on assessments is insufficient to pay the losses in full (Delle v. State Mut. Hail Ins. Co., 119 Iowa, 173, 93 N. W. 96). 3. EXTENT OF LIABILITY IN GENERAL. (a) In general. (b) Partial loss. (c) Liability for successive losses. (d) Loss by removal of property from impending danger. (e) Amount of interest of insured. (f) Property insured for security of creditor or mortgagee, (h) Loss of rents and profits. (1) Expenditures. (j) Extent of liability under Lloyd's policies. (k) Deductions and offsets in general. (1) Unpaid premiums. (m) Duties of insured after loss in general. (n) Sale of goods after loss. (a) In general. If the property is so damaged by fire as to render it useless for the purposes for. which it has been used, it is a destruction in law (Manchester Fire Assur. Co. v. Feibelman, 118 Ala. 308, 23 South. 759). But an insured is entitled to indemnity only for his actual loss, notwithstanding an agreement in the policy that in case of loss no proof of property is to be required (Hemmenway v. Eaton, 13 Mass. 108). And the liability of the insurer, except so far as limited by the policy, must be judged by the nature of the property insured, the risks to which it was subjected, and the natural accidents to which it is liable (Marcy v. Sun Ins. Co., 14 La. Ann. 264). However, a recovery by an insured is not restricted to indemnity for property destroyed, but may include damages to goods not destroyed (Boston Marine Ins. Co. v. Scales, 101 Tenn. 628, 49 S. W. 743). And in Cox v. Charleston Fire & Marine Ins. Co., 3 Rich. Law, 331, 45 Am. Dec. 771, it was held that a person insured by an open policy is entitled to recover the full value of the goods insured, the premium paid being a part of the amount insured. If losses occur to a mutual insurance company which exhaust all the funds of the company, an insured suffering a loss subsequently thereto is entitled to any part of the fund assessed for the payment of the first losses (Coston v. Alleghany County Mut. Ins. Co., 1 Pa. 322). The fact that the fumes of burning sulphur prevented firemen from entering the insured premises at the time they were burned |