Campbell, J.,
delivered the opinion of the Court.
It was decided by the Supreme Court of Michigan, in Westchester Fire Ins. Co. v. Earle, 33 Mich., 143, that “there can be no more force in an agreement in writing not to agree by parol than in a parol agreement not to agree in writing. Every such agreement is ended by the new one which contradicts it.” *313If this is true, it would seem that the provision in the policy that there could be no waiver of its terms and conditions “ unless such waiver shall be endorsed hereon in writing,” was ineffectual. Be this as it may, it has been frequently decided that “ such a stipulation applies only to those conditions and provisions in the policy which relate to the formation and continuance of the contract of insurance, and are essential to the binding force of the contract while it is running, and does not apply to those conditions which are to be performed after the loss has occurred, in order to enable the assured to sue on his contract, such as giving notice and furnishing preliminary proof of loss.” Carson v. Jersey City Ins. Co., 43 N. J. L. (14 Vroom), 300; O'Brien v. Fire Ins. Co., 52 Mich., 131; Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md., 102; Blake v. Ex. Mut. Ins. Co., 12 Gray, 265; Indiana Ins. Co. v. Capehart, 108 Ind., 270; Roker v. Amazon Ins. Co., 51 Md., 512.
In view of this interpretation by-the courts of such a condition in a policy, it must be supposed to have been inserted with the understanding that it did not apply to what was required of the insured after a loss had occurred, and did not prevent the claim of a waiver of proof of loss by the acts of the agent of the company.
Was there in this case evidence of a waiver sufficient to be submitted to the jury, and to sustain the finding that there was? If the court can affirm confidently that the insured should not, as a reasonable person, have been misled, it should not be left to the jury, but should be decided by the court. If this cannot be affirmed, either because of dispute as to what occurred, or doubt as to its just influence on the insured, it should be submitted to the jury under proper instruction. Where it appears that the insured was not misled, all idea of waiver is excluded. That the insured claims to have been misled signifies little, and is not the criterion by which to determine the question, which is: Was what occurred, and is relied on as a waiver,sufficient to mislead the “ average man " into the belief that he was relieved from the obligation to do more than he did ?
McPike v. Western Ass. Co., 61 Miss., 37.
*314Doubtless in every case of failure to make proof, or do anything required of him after a loss, the insured might truly claim to have been misled; but he may have misled himself, or have neglected to do what he should from consideration quite independent of anything done or said by the insurer or its agents. The question is, was the insured, as an ordinary person, reasonably justified in his course of inaction by what occurred between himself and the insurer ? If this be a matter for fair disputation, about-which men might reasonably differ, it should be left to the jury; otherwise not. We repudiate the proposition that it is always for the jury to say whether or not there has been a waiver. When there is evidence to be passed on by a jury it is to find upon it, of course; but if the presiding judge can say that upon the undisputed facts there is no ground for dispute-about a waiver, he should decide the contrary. We know no peculiarity about cases of this character to distinguish them from others.
We reaffirm our announcement made in Insurance Company v. Sorsby, 60 Miss., 302, that “ the company is not to be prejudiced in its defence because its agent promptly went to the scene of the fire, and pursued every allowable method of investigation of the loss, and tried ineffectually to come to an understanding with the insured. This would be to punish for an effort to perform duty.”
Investigation into the circumstances of a loss, and an effort to agree with the insured as to the amount of his loss, and an offer to pay a sum less than the amount claimed will not constitute a waiver. There must be more than this; and where this alone appears, the jury should be told to find for the insurer. Waiver which rests upon the idea of estoppel cannot be predicated of mere performance of duty or exercise of right, or offer of compromise by the insurer; and this view should be firmly maintained by the courts.
If the claim of a waiver in this case rested alone on what occurred when Gillaspie, the agent, was in Hazlehurst soon after the fire, it would be manifest that the issue should be decided for the insurer; but the testimony of Gillaspie shows that he made several visits to Hazlehurst, “ to try to settle the matter *315with Mr. Matthews. He standing to the amount of his insurance and would make no concessions.” It thus appears that the controversy between Matthews and Grillaspie on his first visit after the fire was as to the value of the building, and the deduction that should be made because it was an old one, and this controversy was adjourned and renewed on the repeated visits of Grillaspie for the purpose of “ a settlement.” It further appears that letters were passed between the parties which sustain the proposition that the only matter of difference was as to the value of the old building and how much the insurer should pay. It may be that this protracted negotiation and the discussion between the parties, during which the liability of the insured for the loss was assumed and recognized, and the only difference was as to the .sum to be paid, was well calculated to mislead the average man into the belief that he need not make any further proof of loss than was known to the insured. The circuit judge was of opinion that it should be left to the jury, and we are unwilling to disturb the judgment, which is accordingly.
Affirmed.