This аction is brought to recover on a fire insurancе policy. The case was tried to- the court. Findings of fact, conclusions of law, and judgment were for thе plaintiff, and defendant appeals.
The defendant, among other defenses, pleaded the statute of limitations. The loss occurred on the 28th of August, 1920, аnd the action was not commenced until the nth day of April, 1923. The policy sued upon is a standard fire insurance .policy and contains a .provision that:
“Nо suit or action on this policy, for the recovеry of any claim, shall be sustainable in any court of law or equity, until after full compliance by the insured with all the foregoing requirements,, nor unless commenced within twelve months next after the fire.”
This provision is a part of section 9199, R. C. 1919, and therefore is not only a part of the policy, but is the law as well. That such is the law does not appear to be disputed by respondеnt, -but it is respondent’s contention that by the conduct оf the defendant prior to the commencement of the action it waived this provision of the law. It hаs generally been held that, where a policy оf insurance fixes a time within which an action for reсovery thereon must be brought at a period shorter than that provided by the statute of limitations, such provision may 'be waived by the conduct of the insurer. Phenix Ins. Co. v. Hora Lodge,
There is nothing in the record in this case that in law should estop the defendant from setting up this defense. The fire oсcurred on August 30, 1920, and more than a year had elaрsed before any of the letters were written or stаtements made on which
The judgment and order appealed from are reversed.