82 Wis. 112 | Wis. | 1892
The fire occurred September 14,1890. The notice of loss appears to have been given within- six days thereafter, as required by the policy. The learned counsel for the defendant contends that the evidence fails to sustain the finding of the jury to the effect that the plaintiff- sent to the defendant by mail, at Brooklyn, N. Y., proofs. of loss, with the certificate of a magistrate annexed, September 28, 1890, and that the defendant received the same. Eor the purposes of this appeal we shall assume-that, this contention is correct. The defendant admits in its answer that on or about December 11, 1890, it received by mail; at its office in Chicago, what purported to be proofs of loss anda certificate of a notary public relative thereto;, but alleges that such proofs and certificate were not furnished at its Chicago office within the time and in accordance with the terms and conditions prescribed in the policy. The policy required the plaintiff to render particular verified proofs of loss within thirty days after such notice of-loss*— that is to say, within thirty-six days after the fire; but the policy nowhere makes the failure to render such proofs within the time named operate as a forfeiture of the policy. To prevent such forfeitures, courts are bound to construe such contracts as strongly against the insurer, and as favor
But it is claimed that the proofs so conceded to have been furnished were defective and insufficient. The proofs and certificate so received at the defendant’s Chicago office were retained by it without any objection until the trial of this action. This, upon well-settled principles of law, must be regarded as a waiver of such defect or insufficiency, if any existed. Palmer v. St. Paul F. & M. Ins. Co. 44 Wis. 209; Cannon v. Home Ins. Co. 53 Wis. 585; Cayon v. Dwelling House Ins. Co. 68 Wis. 510.
Error is assigned because the court did not direct a verdict in favor of the defendant, for the reason that no arbitration was ever had as required by a provision of the policy mentioned in the foregoing statement, nor any demand therefor ever made by the plaintiff. Counsel lays stress on the clause of the policy which made the loss pajm-ble sixty days after the proofs were received at the Chicago office and the loss had been ascertained by the arbitrators in accordance with the policy. The policy also provided that “ the amount of sound value and of damage . . . may- be determined by mutual agreement between the company and the assured, or, falling to agree, the same shall then be ” determined by arbitrators as prescribed. Manifestly, there was no intention of requiring a submission to arbitrators in case the parties agreed as to the amount of
By the Court. — The judgment of the circuit court is affirmed.