1 2 One of the policies, issued June 8, 1896, under which the loss occurred December 11th following, covered a building and the merchandise therein, and the other household goods. The loss was entire, except merchandise saved to the agreed value of five hundred dollars. The proofs doubtless would have been more satisfactory, had not the plaintiff’s books and-papers been destroyed by> the fire. They were, under the circumstances, sufficient to sustain the jury’s findings of value. The rulings on, the admissibility of evidence, except in two instances were so evidently correct that we shall give them no attention. These exceptions were requiring the president of the company to state whether he was a stockholder in the Capital Insurance Company, and whether the father of J. D. Berry was such holder in the defendant. These matters did not have the slightest bearing on the controversy, but could have worked no prejudice. Proofs of loss were not furnished within sixty days, as required by statute, and the question of controlling importance is whether these were waived. The company was promptly informed of the fire, and, as ifs adjuster was indisposed, employed J. D. Berry to visit the assured and adjust the loss. This appears from the letter of the defendant’s president, addressed to Berry, in, which, after mentioning the loss, he said: “I enclose papers to you, and will ask, if you can get time to take it in early next week, you may make your arrangements to do so'. We have simply acknowledged receipt of the notice of loss, to the agent, F. L. Davis, at Missouri Valley, and the assured, at Loveland. I would suggest that in the settlement you will not need the services of *475Navis, in my judgment. * * * I think if he was with you he would be a detriment instead of am aid. We send you two ■covers, and would suggest that you make two proofs. You will observe the building and stock are reinsured in the St. Paul. We, of course, will have to make proof to them. The policy has the usual three-fourths clause, which, of course, would apply to the building, as well as its contents if you make it work. However, I will leave that matter with you.” ■“Take it in,” as used in the letter, evidently meant to adjust the loss. This appears from the reference to the settlement, the agent, and the use of the three-fourths clause suggested. Having power to adjust, that to waive formal proofs of loss was necessarily included. Ruthven v. Insurance Co., 102 Iowa, 563; Heusinkveld v. Insurance Co., 106 Iowa, 229.
3 II. We now direct our attention to the inquiry as to ■whether the evidence was such as to sustain the finding of the jury that Berry or the president in fact waived the formal proofs, or extended the time in which to make them. He. visited the assured but a few days after the fire, and they agreed on the value of the merchandise saved. He ascertained the dimensions, character, cost, and age of the building, and requested to see the plaintiff’s books, bills and invoices. Upon being informed that all save two books, which were produced, had been destroyed, he told the assured to procure duplicate bills a year or eighteen months back, and, when these were gotten, to notify the company, and he would return and fix the matter up. A few days later the local agent, at plaintiff’s instance, advised defendant of the difficulty in obtaining duplicate bills, because of many purchases being made with cash. The president of the company, in response, wrote Necember 18, 1896, that: “Mr. Berry informs me that he made no figures on the building, and made no effort to adjust that at the present; and I would say before the matter is adjusted on building, accurate figures will be made; to determine the actual value of the building, so there need be no^ controversy *476whatever as to the building. As to Mr. Lake being unable to get his duplicate bills, I would 'say that I think there is a mistake about that. My experience of several years in this line of business has taught me that all reputable houses ■ keep an account of all sales, and to whom sold, and a list of' the articles sold, and the mere fact that the goods were paid for at tire time does not change tire nature of the case. * * * If you should see Mr. Lake again, you will call his attention especially to that part, and suggest that he, in the-shortest time possible, secure certified copies of the bills purchased. As soon as that has been, done, and the company has been notified, I will see that the claim receives proper-attention.” This letter was shown the plaintiff. It should, be added that the policy provides that assured “shall also,, as often as required, produce his books of account and other ■ vouchers, and permit extracts and .copies thereof to be made, and shall also furnish certified copies of all bills and invoices • of the property, the originals, of which cannot be found.” In Sagers v. Insurance Co., 94 Iowa, 519, the contract required the production of books and bills, but not certified copies thereof, as in this case; and it was held that, as no-objection had been made to the copy of an affidavit of loss-furnished by mistake instead of the original, the promise-to give the loss attention, and send an adjuster when duplicate bills had been procured as agreed, was a waiver of' proofs of loss. Here Berry demanded only what by the-terms of the policy the assured was' bound to furnish, and it' ought no-t to be said that, in requesting compliance with one • of-the stipulations of a contract, another was thereby waived. While the statute makes the furnishing of proofs of loss a,' condition precedent to recovery, it was so agreed in the-policy. No more was asked than the company might by the-terms of the contract exact, and, if there was a, waiver, it must arise from Berry’s statement that, -as soon as the duplicate bills were secured and the company notified, he would' “fix the matter up,” or from the assurance of the president; *477that thereupon he would “see that the claim receives proper attention.” The test is whether the acts and conduct of the insurer are inconsistent with the intention to insist on strict •compliance with the terms of the policy and statute. The waiver is put on the ground that an insurer whose conduct is such as to induce the insured to rest under'a. well-founded belief that strict performance with a condition will not be insisted on cannot in good faith afterwards set it up as a bar to recovery. Insurance Co. v. Keating, 86 Md. 130 (63 Am. St. Rep. 599; 38 Atl. Rep. 29). In that case 'the promise of the adjuster to send a check after examining into the loss and the value of the property •destroyed, if the insured understood therefrom that no proofs of loss would be required, was held to be. a ■waiver thereof. See Rathbone v. Insurance Co., 31 Conn. 193. On principle, the promise to pay should be as effective ■ as a waiver of proofs as the denial of liability; for in the •one case, as in the other, furnishing proofs would be but an idle and useless ceremony. •Besides1 a promise of settlement would be inconsistent with insistence on strict compliance with the conditions of the contract. See Ruthven v. Insurance Co., 102 Iowa, 550; Insurance Co. v. Erb, 112 Pa. St. 149 (4 Atl. Rep. 8). In view of the conditions of the policy, ■what might the insured reasonably infer from the letter and Berry’s statement? Men of much wider experience than he would have been led to rest on the assurance that loss •would be adjusted upon the procurement of duplicate bills, without more. The company should be given large liberty in the matter of investigating the character of the loss, but, ■when this has been done, and a promise to. adjust, to' deter■mine what is due, is made, on certain conditions, the insured has the right to rely thereon; and if he does so, and omits formal proofs, of loss, it does not lie with the insurer to .gainsay the natural results of its conduct. We are of opinion that the letter of the president and the promise of Berry were well calculated to.- induce the belief on part of *478plaintiff that nothing save the procurement of the duplicate-bills was required of him, and whether he so understood,, and had the right to think nothing further would be required,, was for the determination of the jury.
4 III. It is asserted, however, that the poicy prohibited such waiver 'of proofs by either the adjuster or president. In the recent case of Washburn-Halligan Coffee Co. v. Merchants’ Brick Mut. Fire Ins. Co., 110 Iowa, 423, it was held that such a condition has-no reference to the enforcement of the provisions of a policy after loss. — Aeeirmed.
Granger, O. J., not sitting.
AI-generated responses must be verified and are not legal advice.
