
    The Eureka Fire & Marine Insurance Co et al. v. Baldwin.
    
      Fire insurance policy — Party to contract must show performance, if averred, in order to recover- — -Condition of insurance contract that it become void if property becomes unoccupied by tenant — Nature of such occupancy — Question of increase of risk if occupancy fail.
    
    1. Where a party avers that he has performed all the conditions of a contract to be by him performed, his proofs upon the trial must show such performance in order to entitle him to a recovery. Under such an averment it is not competent to prove a waiver of such conditions. If the waiver of- conditions is relied upon, such waiver must be averred in the pleadings.
    2. The condition in a fire insurance policy was, that the property is “occupied, and to be occupied by tenant as a private dwelling,” and to be void if the property should become unoccupied without the assent of the company. The tenant moved out, and the son of the owner slept in the house during the day and worked nights, having only a cot, a chair and an alarm clock in the house; the family of the owner resided next door and obtained their rain water from a cistern in the kitchen of this house, and the owner went through the house every day, the fire occurring late at night. Held: that in legal effect the house was unoccupied, and the court should have so instructed the jury, and then left the question to the jury as to whether the risk was thereby increased.
    3. The power of an agent to waive conditions in a policy of fire insurance is not different from the same power in life insurance. As to such power, Union Central Life Insurance Co. v. Hook, 62 Ohio St., 256, is followed and approved.
    (Decided April 10, 1900.)
    Error to the Circuit Court of Cuyahoga County.
    The pleadings in the common pleas, omitting the captions and signatures, are as. follows:
    PETITION.
    Plaintiff says:
    That each of defendants is a corporation, duly incorporated under the laws of the state of Ohio.
    
      On the 20th day of April, 1893, plaintiff, being the owner of a house on North Depot street in Nottingham, Cuyahoga county, Ohio, in consideration of the premium of three and 20-100 dollars paid, the defendants, by their policy of insurance, a copy of which is hereto annexed, insured plaintiff .against loss or damage by fire to the amount of four hundred dollars on said property, from the 20th day of April, 1893, at noon, until the 20th day of April, 1896. at noon.
    Plaintiff has duly performed all the conditions on his part to be performed, and on the 16th day of May, 1894, said house was totally destroyed by fire.
    Plaintiff immediately thereafter, on said 16th day of May, notified defendants of said loss, and after-wards, on January 31st, 1895, gave them due proofs of said loss.
    Each of said defendants, for the consideration of one half of said premium paid, in one joint and several policy, insured plaintiff to the amount of one half of said four hundred dollars. No part of said loss has been paid.
    Wherefore plaintiff asks judgment in the sum of four hundred dollars — two hundred dollars against each defendant, with interest from said May 16, 1894;
    ANSWER.
    Now come the defendants, The Eureka Fire and Marine Insurance Company, and The Security Fire Insurance Company, and for answer to the petition of plaintiff, J. L. Baldwin, say, that they admit that each of the defendants is a corporation, duly incorporated under the laws of the state of Ohio; that on or about April 20th, 1893, the defendants issued to the plaintiff the policy of insurance, a copy of which is attached to the petition herein, and that plaintiff paid defendants therefor a premium of three dollars and twenty cents ; that on or about May 16, 1894, plaintiff notified the defendants’ agent that a fire had occurred in or about the house mentioned in said policy; and that defendants have paid plaintiff nothing on account ofi the claim set up in his petition herein.
    Defendants <leny each and every allgeation in said petition contained which is not by this answer expressly admitted to be true.
    SECOND DEFENSE.
    For their second defense defendants refer to the admissions and denials of their foregoing first defense, making the same a part hereof as though herein fully pleaded at length; and say that said policy of insurance contained, among others, the following provisions: That the building' insured thereby was, at the time of the issuance of said policy, and should during the term thereof continue to be, occupied by a tenant as a private dwelling ; and that, if said building should become unoccupied without the assent of the defendants indorsed on said policy, then and in such case said policy should be and become void.
    And defendants say that, long prior to May 16th, 1894, the plaintiff’s tenant and his family, who had theretofore occupied the building insured by said policy, vacated the same; that said building thereafter remained vacant and unoccupied as a private dwelling or otherwise, up to the time of the fire mentioned in the petition herein; and that, at the time of said fire and for a long time previous thereto, said building had been vacant and unoccupied as a private dwelling or otherwise. That the leaving of said building so unoccupied and vacant greatly increased the risk thereon, and enhanced the danger of loss or damage thereto by fire. That assent of the defendants to such vacancy was never indorsed upon said policy; and that neither one of the defendants, through any one of their agents or representatives, or in any manner, ever assented to said building being left unoccupied as a private dwelling, or had notice or knowledge of its being so unoccupied.
    Wherefore, defendants pray that they may be hence dismissed with their costs.
    REPLY.
    The plaintiff, for reply to defendant’s second defense, says that he denies that said premises were vacant and unoccupied at the time of said fire or for a long time prior thereto, and denies that the risk thereon Avas increased, or the danger of loss by fire was enhanced in any way over that assumed by the defendants at the time said policy was issued. And, further replying, plaintiff says that it is the custom, in this community, of these defendants, and of insurance companies generally here to issue and give assents and permits for insured buildings to remain unoccupied temporarily, and for short periods during changes of tenants, and that these defendants gave plaintiff a like permit for an unoccupied dwelling much more exposed to risks and danger than the dwelling that burned; and plaintiff alleges that the fire which consumed his house originated outside of said building and said loss was in no way affected by the question of occupancy or vacancy of said building.
    And as to all other allegations contained in said answer, plaintiff denies each and all of them.
    A copy of the policy Avas attached to the petition, and on the trial the policy Avas offered in evidence by the plaintiff beloAv, as were also the proofs of loss.
    The policy contains the following conditions: That if the premises should at any time be occupied or used so as to ' i crease the risk, or should become unoccupied without the assent of the companies indorsed on the policy, then in every such case the policy should b° void. The premises “occupied, and to be occupied, by tenant as a private dwelling.” “The description of the property herein insured referred to in this policy shall be considered a part of this contract, and a warranty by the assured during the time this policy is kept in force,”
    “Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the companies in the city of Cincinnati, and as soon . after as possible render a particular account of such loss, signed, and sworn to by them, stating Avhether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cásh value of the property and their interest therein, for Avhat purpose and by whom the building insured or containing the property insured, and the several parts thereof, were used at the time of the loss, Avhen and how the fire originated, and shall also produce a certificate under the hand and seal of a magistrate or notary public.”
    The loss or damage “to be paid sixty days after due notice and proofs of the same, made by the assured and received at the'office of the companies in the city of Cincinnati, Ohio, in accordance with the terms of this policy.”
    “It is further understood and made part of this contract, that the agent of the companies has no authority to waive, modify or strike from this policy any of the printed conditions, nor is his assent to an increase of risk binding upon the companies, until the same is endorsed in Avriting on the policy and the increased premium paid; nor is his assent to a change of interest, or transfer of property to another location binding upon the companies, until the same is endorsed in writing on the policy; nor, in case this policy shall become void by reason of the violation of any of the conditions thereof, has the agent poAver to revive the same, and that a new policy intended to replace any policy so made void shall be of no effect until its actual issue and delivery thereof to the assured, any contract by parole or understanding with tbe agent to the contrary notwithstanding.”
    As the fire occurred on May 16,1894, and the proofs of loss Avere not furnished until January 31, 1895, the plaintiff claimed upon the trial that the proofs of loss had been Ayaived, and he was allowed to introduce evidence, over the objection and exception of the defendant companies, for the purpose of proving such waiver. The plaintiff claimed that the companies, after the fire, examined as to the loss, and denied liability because the premises were not occupied at and before the fire, and the court charged the jury in effect that such denial if established Avould constitute a Avaiver of proofs of loss, to which charge the companies excepted.
    Upon the trial the plaintiff testified that his tenant moved out of the premises not later than April. 19, 1S94, and that thereafter he had no other tenant in the house, but that his son who was a night' brakeman slept in a bed room of the house upstairs during the day time, getting his meals at the residence of his parents, and sleeping in the house that was burned, which was next door to that of his parents, from about nine o’clock in the forenoon until about five o’clock in the afternoon, and that he had only a cot, a chair and an alarm clock in the house, and that he paid no rent and was not expected to pay any; that he with his family resided next door to the burned property, and obtained all their rain water from a cistern in the kitchen of the property, that he went through the property every day, and that the fire occurred late at night.
    From this evidence the companies claimed that the house was not occupied by a tenant, and asked the court to so instruct the jury, and then submit the question to the jury as to-whether the risk was thereby increased. The court submitted the question as to AAdiether the house was unoccupied, and if so, whether the risk was thereby increased, to the jury, to which the defendants excepted.
    The jury returned a verdict for the plaintiff, the court overruled the motion for a' new trial and entered judgment upon the verdict, to all of which the defendants excepted. The circuit court affirmed the judgment. Thereupon the plaintiffs in error filed their petition in this court seeking to reverse the judgments of the courts below.
    
      Roger M. Lee, for plaintiffs in error.
    The written slip attached to the policy, describing the risk, provided that the insured building was “occupied and to be occupied by tenant as a private dwelling.” The policy also provided that the description of the insured property contained in the policy should be considered as a part of the contract and a warranty by the assured during the time the policy is kept in force. The policy also provided that, “if the above mentioned premises shall at any time be occupied or used so as to increase the risk * * * or if the premises become unoccupied, without the assent of the companies indorsed hereon * * * this policy shall be void.”
    These provisions constituted a continuing warranty that the insured building should at all times be occupied by a tenant as a private dwelling. Stout v. Fire Ins. Co., 12 Ia., 371; Insurance Co. v. Wells, 42 Ohio St., 519.
    The admission of a lodger does not create a tenancy. There must be the putting of a lessee into the exclusive occupation of the premises. White v. Maynard, 11 Mass., 253.
    The policy provision with reference to occupancy has been uniformly held to entitle the insurer “to have the building occupied as a dwelling, and to have the care and supervision exercised which such occupancy insures.” Poor v. Humboldt Ins. Co., 125 Mass., 124; 
      Ashworth v. Builders’ Ins. Co., 124 Mass., 422; Cook v. Continental Ins. Co., 70 Mo., 610; Feshe v. Council Bluffs Ins. Co., 74 Ia., 676; Marsh v. Bristol, 65 Mich., 378; Bonefant v. Ins. Co., 76 Mich., 653 ; Fitzgerald v. Conn. Fire Ins. Co., 60 Wis., 463; Weidert v. State Ins. Co., 19 Ins. Law Journal, 740.
    Performance of this requirement as to proof of loss and magistrate’s certificate is a condition precedent to plaintiff’s right to recover. Home Ins. Co. v. Lindsay, 26 Ohio St., 348; Moody v. Ins. Co., 52 Ohio St., 12.
    This defense is not waived by pleading and relying on other defenses not inconsistent therewith. Farmers’ Ins. Co. v. Frick, 28 Ohio St., 466.
    The provision, that proofs of loss shall be furnished “as soon as possible,” means that they must be furnished within a reasonable time under the circumstances. It is undisputed that nearly nine months elapsed between the date of the fire and the time of serving these proofs of loss; and plaintiff offered no testimony of any sort for the purpose of explaining this delay. So far as the record shows, there was no reason why he could not have served proofs of loss within a week or two after the fire.
    In the following cases, under such a requirement, that proofs of loss be given “as soon as possible,” delays ranging from two, three and four months up to' seven and eleven months have been held, when unexplained, to be unreasonable and fatal, as matter of law. Scammon v. Ins. Co., 101 Ill., 621; Baker v. Ins. Co., 124 Ind., 490; McPike v. Assurance Co., 61 Miss., 37; McEvers v. Lawrence, 1 Hoff. Ch. (N. Y)., 171; Hobson v. Assurance Co., 19 U. C. Q. B., 314; Express Co. v. Ins. Co., 1 Bull., 85; Kim-ball v. Howard Ins. Co., 8 Gray, 33; Inman v. Fire Ins. Co., 12 Wend., 452; Whitehurst v. Ins. Co., 7 Jones Law (N. C.), 433; Trask v. State Ins. Co., 29 Pa. St., 198.
    The question as to what is a reasonable time within which to give notice or serve a proof of loss, when there is no conflict in the testimony as to the circumstances, or when, as in this case, there is no testimony at all on the subject, except the proof of loss and the date when it was served, is a question of law to be determined by the court. Walker v. Stetson, 14 Ohio St., 89; Bassenhorst v. Wilby, 45 Ohio St., 333; Ins. Co. v. Kyle, 11 Mo., 278.
    This court has firmly established the rule that proof of waiver is not permissible under a plea of performance. Eiceman v. Insurance Co., 74 Ill., 11; Fire Ins. Co. v. Hazen, 110 Pa. St., 530; Kimball v. Fire Ins. Co., 8 Gray, 33.
    And so it -was held that waiver of the proof of loss condition could not be proven under a plea of performance.
    The following cases distinctly and clearly sustain this proposition as applicable to the proof of loss requirement in insurance policies. Edgerly v. Ins. Co., 43 Ia., 587; Welch v.Ins. Co., 71 Ia., 337; Bern-hard v. Ins. Co., 40 Ia., 442; Fauble v. Davis, 48 Ia., 462; Bank v. Ins. Co., 74 Fed. Rep., 507; Livesay v. Omaha Hotel, 5 Neb., 50; Ins. Co. v. Batchelder, 32 Neb., 490; Boone v. Ins. Co., 37 Minn., 426; Ins. Co. v. Camp, 64 Texas, 521.
    The record shows that there is no indorsement on the policy as to the proof of loss requirement being, waived. The only testimony upon the subject of waiver was that of the plaintiff and his witness, Mapes, relating to conversations that occurred between them, and the letter written by Mapes to the plaintiff. Life Ins. Co. v. McMillin, 24 Ohio St., 67.
    The following cases expressly .hold that, under similar provisions, the agent of the company cannot waive proof of loss, except by indorsement on the policy, as provided for. Ins. Co. v. Weiss, 106 Pa. St., 20; Smith v. Ins. Co., 60 Vt. 682; Ruthven v. Fire Ins. Co. (Ia), 60 N. W., 663; Kirkman v. Farmers’ Ins. Co., 90 Ia., 457; Quinlan v. Ins. Co., 133 N. Y., 356; 
      Gould v. Ins. Co., 90 Mich., 302; Knudson v. Fire Ins. Co., 75 Wis., 148.
    And tlie same provisions are sustained and followed in a multitude of other cases with reference to various other conditions, among which may be mentioned: Kyte v. Ins. Co., 144 Mass., 43; Ins. Co. v. Conover, 98 Pa. St., 384-388; Walsh v. Ins. Co.; 73 N. Y., 5; Messelback v. Norman, 122 N. Y., 578; O’Brien v. Ins. Co., 134 N. Y., 28; Bomgartle v. Ins. Co., 136 N. Y., 547; Wilkins v. Ins. Co., 43 Minn., 177; Gladding v. Ins. Co., 66 Cal., 6.
    Some courts have held that sucb provisions in the policy do not bind the assured as to matters connected with the inception of the contract — that is, with matters which arise before the policy is delivered to the assured, because, as the assured has not then received the policy, he is not presumed to know its provisions. It has been so held in New York. Wood v. Fire Ins. Co., 149 N. Y., 382.
    A mere local issuing agent has no implied authority to take any steps relating to the settlement of a loss under policies issued by him, or to waive proofs of loss. Smith v. Ins. Co., 60 Vt., 682; Lohnes v. Ins. Co., 121 Mass., 439; Bush v. Ins. Co., 63 N. Y., 531; Van Allen v. Ins. Co., 64 N. Y., 469; Bowlin v. Ins. Co., 36 Minn., 433; Harrison v. Ins. Co., 59 Fed., 732; Van Genechtin v. Ins. Co., 75 Ia., 554; Ins. Co. v. Kennedy, 60 Ark., 432.
    Section 3644 of the Ohio Revised Statutes makes the soliciting or issuing agent the representative of the insurer as to matter connected with the issuing of the policy, but not as to any subsequent matters. Stevens v. Ins. Go., 21 Ins. Law Journal, 443.
    
      J. F. Herrick; F. P. McClure and R. C. Hartshorne, for defendant in error.
    The principal question in this case arises under the 2nd Assignment of Errors, as made by opposing counsel. On this subject, we claim that, “In suit against an insurance company for loss by fire, proof as to waiver of notice of loss, may be made without any special averment of that fact in the pleading.” Levy v. Ins. Co., 10 W. Va., 560; O’Brien v. Ohio Ins. Co., 52 Mich., 131; Schultz v. Ins. Co., 57 Mo., 331; Russel v. Ins. Co., 55 Mo., 585; May on Ins., p. 589; Ins. Co. v. Baldwin (this case), 17 CC., 143.
    The above Michigan, West Virginia and Missouri cases and 102 Pa. St., 568, have the same general averment of performance of all the conditions necessary, as this case.
    All of them hold that waiver may be proved under “the general averment of performance.”
    ’ On the other hand, not an insurance case is cited by opposing counsel in his brief or elsewhere, and we know of no insurance case, that holds that waiver can not be so proved. Not one.
    When an insurance company denies liability or declares its policy void, it is estopped from denying proofs of loss. 52 Mich., 131; 55 Mo., 585; while 62 N. W. (Neb.), 883; 112 Pa. St., 149; 168 Pa. St. I, and Ins. Co. v. State, 113 Ind., 331, all lean strongly toward that doctrine.
    There is a large class of Massachusetts and New York cases, forty years old, which seem to have settled this question as above indicated — most of them holding that,
    No objection made to want of preliminary proof, is waiver. 6 Cowen, 404; 25 Wend., 375 ; 9 Johns, 192;
    16 Wend., 401; 1 Johns, 229; 9 Wend., 163; 7 Johns, 315; 20 Pick., 389; 2 Comstock, 53; 14 Mo., 221, where this question is fully discussed. This accounts for the dearth of recent eastern authorities on this • subject.
    The authorities uniformly hold that “denial of liability operates as a waiver of necessity for proofs of loss.” May on Insurance, p. 469; Pac. R. (Kas.), 
      1099; 62 N.W. (Iowa.), 810; NE., (Ind. App.), 417; 108 Ind., 270 and 518; 58 Wis., 508; 32 Neb., 490; 112 Pa. St., 149; 168 Pa. St., 1; 62 N. W. (Neb.), 883; 9 How. U. S.), 391.
    The two latter cases indicate that a defense in court denying liability, or claiming that the policy is void, constitutes a waiver of preliminary proofs.
    If so, it needs neither to be proved nor pleaded.
    Courts seek justice between the parties, not technicalities in pleading.
    Where a pleading may be understood in a way to make it good it must be so understood. I Handy, 181; 5 Ohio St., 450; 14 Ohio St, 417; 4 W. L. M., 105; Stat. 5096.
    The question here is not — what is best pleading — but — what is sufficient pleading.
    The Ohio Code throws some light on this question. Section 121 of code, statutes 5091.
    Such allegation was not controverted, by the answer, but was on the trial. Had it been controverted in the answer, the reply would properly have set up the waiver. That would be proper pleading under that statute. But, whatever is properly alleged in the reply, is not a necessary or proper part of the petition. Hence, pleading waiver in the petition is both unnecessary and improper.
    The words “must establish, on the trial, the facts showing such performance” are significant. It does not say — “Must establish such specific performance in each case,” but “must establish, on the trial, the facts.”
    This statute has been construed in Ins. Co. v. McGookey, 33 Ohio St., 555.
    They (the Ins. Co.) must “bear themselves with all good faith toward the claimant, otherwise they will be held to have waived their rights in this regard,” to-wit: Preliminary proofs. 35 Conn., 310; May on Ins., 468, which says, “And the burden of proof of notice of the defect is on the insurers.”
    
      Now, in view of the fact that the insurance company refused to communicate at all with the insured for one year after the fire, and of this 33 Ohio St., which puts the company in default, and of 52 Mich; 55 Mo.; 62 N. W., and 9 How.
    A large number of cases brought on commercial paper, where the endorser is sought to be held, and in which the petition alleges that notice has been properly served on the endorser, hold that waiver of that notice by the endorser may be shown under- that allegation, and recovery had. 5 Pick., 444; 6 Mass., 388; 11 Conn., 492; 22 Conn., 219; 1 Fla., 327; 17 C. C., 143.
    The first assignment of error is completely covered by the Moody case, 52 Ohio St., .12, both as to the vacancy or occupancy, and as to the province of the jury, and of the trial judge. Ins. Co. v. Tucker, 92 Ill., 64.
    The house was occupied by a tenant, because he was not the owner; it was certainly a private dwelling, because it was not a public house.
    If not a tenant, under a contract or arrangement with the owner, still that fact would not avail the insurance company unless it increased the risk. This is the doctrine of 52 Ohio St., 12. Closely printed conditions put into a policy as a snare to the unwary can not override the plain rule of justice and law. The jury determined this whole question of occupancy and increase of risk, correctly we think, under instructions from the court, in which, we submit, no errors can be found.
    Further, no sufficient exception was taken by plaintiff in error to raise this question. The trial court was never asked to determine this question of occupancy as matter of law. The record shows that nothing was done except the filing of exceptions to the charge, after it was given, and then this alleged error was not pointed out.
    
      This point, raised here, is unfair to the trial court. 17 C. C., 548.
    Further complaint is made in their brief, that the jury was not allowed to pass upon “the question of increase of risk.” Increase of risk over what? Of course, it is over that risk which the policy assumes. Well, there was no such increase of risk. The jury determined that in their special finding, demanded by the insurance company, when they found that the occupancy was just that set forth in the policy. The' special finding fully settles that question. There was risk, but no increase of risk.
    Under, the fifth error assigned, it is claimed that there was no refusal to pay the loss, and insufficient denial of liability. But, if refusal to pay was necessary, we claim that the silence of the insurance company for nearly a year, during which time the assured wrote the company two letters about settlement on this policy and finally sent them proofs of loss, and then their answer in, and defense of this case, constitute refusal to pay. 19 Am. Rep., 285; 15 Wis., 170.
    We submit, also, that denial of liability is itself a refusal to pay.
   Bueket, J.

The plaintiff below did not concede upon the trial that the house was unoccupied by a tenant in the sense in which that term is used in the policy, but he conceded facts which when applied to the terms of the policy in legal effect showed that the house was unoccupied by a tenant from April 19 to May 16, 1894. The son’s sleeping in the house, as stated in the evidence, was not an occupancy by tenant, and the family residing nest door and getting rain water at this house and the owner visiting the house each day, and like acts did not aid the matter.

The court should therefore have charged the jury that under the conceded facts the house was unoccupied at and before the fire, and then left the question to the jury as to whether the risk was thereby increased. If increased there could be no recovery, and if not increased there could be recovery, unless prevented by some other question in the case. Insurance Co. v. Wells, 42 Ohio St., 519.

It canot be said as a matter of law that proofs of loss which are furnished on the 81st day of January next after a fire which occurred on the 16th day of May, were furnished as soon as possible after the fire. As soon as possible in such a case means as soon as reasonably practicable under the circumstances, that is within a reasonable time. There might be cases in which proofs of loss could not be furnished sooner than was done in this case, but if such should be the case, the facts which caused the delay should be pleaded.

It was urged below and also here that the delay was caused by the denial of liability on the part of the insurance companies. If that caused the delay the facts should have been set out in the petition. It is also urged that the denial of liability waived all proofs of loss, and that it was not necessary to furnish any proofs of loss in this case, and this was the view taken by the courts below. There are many respectable authorities Avhich hold that a denial of all liability on a policy after a fire is a waiver of all proofs of loss, and that a recovery may be had in such cases without such proofs. Conceding the law to be so for the purposes of this case, Avithout a full examination of the question, still the question remains as to AAdiether that principle of law could be invoked by the plaintiff under the pleadings in this case. The plaintiff did not plead that the defendants had denied liability on the policies and thereby waived proofs of loss. There was no averment of waiver of any of the conditions of the policies, but on the contrary the averment in the petition is that the plaintiff had duly performed all the conditions on his part to be performed. He relied not upon a waiver of conditions, but upon his'performance of them, including the conditions as to proofs of loss. That he did not rely upon a waiver of proofs of loss is shown by his averment in his petition that he gave the companies due proofs of loss on the 31st day of January, 1895. A waiver of a condition is the opposite of performance; it is a good excuse for non-performance. True there might ‘be a performance of a condition by one party after the other had waived performance. In an insurance case there might be a waiver of proofs of loss, and yet a furnishing of such proofs notwithstanding the waiver, and in such a case it would be proper to aver both performance and waiver. But as a rule of pleading if a party avers the performance of conditions only, he must prove performance upon the trial, and cannot succeed by proving waiver instead of performance. If he intends to rely upon and prove waiver he must plead it. In this respect an action upon a contract of insurance is not different from an action upon other contracts. The law as laid down in Mehurin v. Stone, 37 Ohio St., 19, is applicable to insurance cases as well as to actions on building contracts.

It is urged that in actions against indorsers of negotiable paper there can be a recovery against an indorser under an averment of due notice to him, although the proof fails to show notice, but shows waiver of notice, and the following cases are cited: 5 Pick., 444; 6 Mass., 388; 11 Conn., 192; 22 Conn., 219, and 1 Fla., 327. These cases may have been correctly decided under the system of pleading and rules of decision in those states; but in this state our code of procedure requires parties to state the facts constituting their cause of action or ground of defense, and if the fact relied upon in the pleading is notice, that fact should be supplied in the proof, and if the fact is waiver of notice, that fact should be averred and then proven. This is the plain provision of pleading, and it should be followed, so that parties may be advised by the pleadings, as to what they must be prepared to meet on the trial.

The power of an agent to waive conditions in a policy of fire insurance is not different from the same power in a case of life insurance, and as to that question raised in this case reference is made with approval to what is said on that subject in the case of Union Central Life Co. v. Hook, 62 Ohio St., 256.

In the next trial of this case the questions reserved in the record as to testimony are not likely to again arise, because the errors complained of were caused by the erroneous view taken by the court as to the law of the case as above shown. Those questions will therefore not be further noticed here.

There is, however, another matter which calls for a passing notice.

The insurance companies in the second defense of their answer refer to the admissions and denials of their first defense, and make the same a part of the second as though fully pleaded at length therein. This is bad pleading, and such reference and tacking of one cause of action in a petition, or ground of defense in an answer to a former one, should be stricken out. Each cause of action or ground of defense should be separately and independently stated so as to enable the opposite party to take issue by demurrer or otherwise without being hampered by another cause of action or ground of defense.

Judgment reversed.  