85 Iowa 238 | Iowa | 1892
It is not claimed by the appellee that he gave notice accompanied by affidavit, as required by
About March 1, 1888, Mr. C. H. Williams, the appellant’s adjusting agent, having been advised of
“Waiver” is thus defined in Bishop on Contracts, (section 792): “Waiver is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right, and of his intention to rely upon it.; and thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it
The appellant contends that there is no evidence that its adjusting agent had any authority to waive notice and affidavit of loss, but it is not disputed but that the general agent had such authority. We think the letter from the general agent tends to show a waiver of further notice, and of an affidavit. Without notice and affidavit, or a waiver thereof, the appellant was. not required to act. There was no claim before it, and nothing to adjust. But if the postal card was. accepted as sufficient notice, and affidavit was waived, then there was. It was under these circumstances that the general agent assured the appellee that the loss would have the attention of their adjuster at an early day. Had it been the purpose then to require notice and affidavit, surely some mention of that fact would have been made. But, instead, the appellee is informed that the appellant will proceed to do that which it was
II. The appellant complains of the refusál to instruct that the appellee, having failed to give notice
III. The court instructed that the authority of an adjuster may be shown by thq nature of the business
IV. The court instructed that the burden rested upon the appellee to make out the waiver; that the
V. The appellant complains of the refusal to instruct to the effect that if the appellee was told to come to
VI. The appellant asked an instruction containing the statement that “the policy sued upon provides that
VII. The court permitted the appellee to introduce, over the appellant’s objection, testimony that on the eleventh day of August, 1888, he