| Ark. | Oct 12, 1895
(after stating the facts). The notice of loss given by John J. Sumpter at the instance of the assured was acknowledged by the company to have been received, and was sufficient. Notice by a local agent of the company, upon information communicated to him by the assured, is sufficient. West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289; Wood on Ins. (2 ed.), pp. 938, 939.
Notice in four days has been held “immediate,” and the policy of insurance in this case required immediate notice of loss. Hoffecker v. N. C. C. M. Ins. Co. 5 Houston (Del.), 101.
By its action in sending to the appellee a blank form for proof of loss after the thirty days in which pooof was to be made, and receiving the proof when made, without objection, so far as appears from the proof, the company waived the failure to make proof within the thirty days, and cannot be heard now to object on that account. “Courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, upon which the party has relied and acted.” The company is estopped from enforcing the forfeiture. Insurance Co. v. Eggleston, 96 U.S. 572" date_filed="1878-04-29" court="SCOTUS" case_name="Insurance Co. v. Eggleston">96 U. S. 572; German Ins. Co. v. Gibson, 53 Ark. 494" date_filed="1890-11-01" court="Ark." case_name="German Insurance v. Gibson">53 Ark. 494; Burlington Ins. Co. v. Kennerly, 60 Ark. 532" date_filed="1895-05-18" court="Ark." case_name="Burlington Insurance v. Kennerly">60 Ark. 532.
Proof of loss may be waived by parol, though policy . . . , . ... T7 requires it to be m writing, lb.
The temporary absence of the tenant at the time of r r * the fire did not work a forfeiture, the policy . provided that if the house was allowed to become unoccupied, the policy should be forfeited. May on Ins. secs. 248, 249 d; Wood on Fire Ins. 215, sec. 91.
Was it competent for the appellee to maintain this action alone? We think not. The policy provides that the loss, if any, shall be paid to the Jarvis-Conklin Mortgage Company, absolutely; not as its interests may appear, as is frequently provided in such cases, but the whole amount of the loss is made payable to it. The policy is, in effect, assigned to it, and the legal title is in it.
It, therefore, or its assignee, is the party entitled to sue and recover for the loss on this policy. While the Mortgage Company is entitled to sue and recover the entire loss, the assured (the appellee) may properly be made a party to protect his interest in the policy.
If the policy had been made payable to the mortgagee as its interest might appear, and it did not appear that its interest was greater or as great as the loss, the assured would be the proper party to sue ; but if the policy is payable absolutely to the mortgagee, then the assured can sue only with the express consent of the mortgagee (Coates v. Penn. F. Ins. Co. 58 Md. 172" date_filed="1882-03-22" court="Md." case_name="Coates v. Pennsylvania Fire Insurance">58 Md. 172), unless the assured had paid or extinguished the mortgage debt before suit. Baltis v. Dobin, 67 Barbour, 507; 2 May on Ins. sec. 449; Ennis v. Harmony Fire Ins. Co. 3 Bosw. (N. Y. Superior Court) 516.
The policy of insurance in this case is for one thousand dollars ; the mortgage on the property is for five hundred dollars, as shown by the proof in the case; and it is apparent that the assured has an interest to the extent of the surplus, after the mortgage debt shall have been satisfied.
The judgment is reversed, and the cause is remanded with leave to the appellee to make the holder of the mortgage a party, and for a new trial.