
    WARNER VS. INSURANCE CO. OF NORTH AMERICA.
    An offer by the insurance adjuster to pay a certain sum in settlement of the loss, not having been accepted by the insured, is not a waiver of the necessity of making the proofs of loss required by the policy.
    Suit must be brought within the time specified in the policy, or there can be no recovery.
    Error to Common Pleas of Crawford County.
    Plaintiff had an insurance with defendant for $1000 on a house. On January 19th, 1875, the house was a total loss by fire. The agent of the company was duly notified. No proof of loss was made. Some negotiation, looking toward a settlement, was had between plaintiff and Mr. Foster, the adjuster of the company, but was not consummated. Defendant finally denied liability, and suit on. the policy was brought in the court below to August Term, 1875, and on 18th September, 1877, came to a trial, when plaintiff was non-suited. The plaintiff was not present in court during the trial, a lettér and telegraph having failed to reach him. The court below refused to take off the non-suit in the following opinion: ■
    Per Curiam.
    In every case cited- on the question of the, necessity of the proof of loss or its waiver, there has been some evidence of an actual proof of loss. In some cases not proof in detail as the policy required, yet not objected to by the company when received but accepted without objecting to the matters not given in detail.
    No principle is better settled than that a company can waive a provision of this kind. But it has never yet been settled that an offer by an agent to pay so much money refused by the holder of the policy is a waiver of anything. And from the evidence given we can see nothing more in this case than an attempt to agree on an amount. The plaintiff knows there was no agreement of the kind and he does not bring his suit upon such agreement. There is nothing said as far as proof goes tending to show when the offer was withdrawn which was made on one side or any waiver of proof of loss under the policy. We are n'ot satisfied by any means that the authorities, giving them the most liberal construction, would hold or authorize a holding that a failure to agree soon after the loss occurred would be a waiver of the proof of loss, and for that reason we will have to refuse this motion.
    
      Warner then took a writ of error complaining of the entry of the judgment of non-suit.
    
      D. C. McCoy, Esq., for the plaintiff
    argued that, a limitation or condition in a policy of insurance intended for the benefit of the company may be waived by it and the fact of waiver is a question for the jury; Coursin vs. Pennsylvania Ins. Co., 10 Wr. 323; Farmers’ Ins. Co. vs. Taylor, 23 P. F. S. 342; Commonwealth Ins. Co. vs. Sennet, 5 Wr. 161; Inland Ins. Co. vs. Stauffer, 9 Casey, 397; Franklin Fire Ins. Co. vs. Updegraff, 7 Wr. 350; Mentz vs. Lancaster Fire Ins. Co., 29 P. F. S. 475.
    Payment of part is a waiver of preliminary proofs; Westlake vs. St. Lawrence Ins. Co., 14 Barb. 206. So also the denial of liability exclusively for other reasons, Inland Ins. Co. vs. Stauffer, 9 Casey 397.
    
      C. O. Bowman, Esq., contra.
    
   The decision of the Court below was affirmed by the Supreme Court on January 7, 1878, in the following opinion :

Per Curiam.

The sixth condition of the policy sued on requires the assured to give immediate notice of his loss, and as soon as possible thereafter a particular account and proof thereof, signed and sworn to, setting forth a copy of the written part of the policy; other in-, surances if any ; the actual cash value of the property at the time of loss; the ownership and interest of the assured therein ; for what purpose used at the time of the loss; the date of the loss and the amount thereof, and how the fire originated. This condition was not complied with, and there was no evidence that it was waived by the company. It is true the notice of the loss was given to the local agent, who informed the company, and sent its adjuster to ascertain the loss. The adjuster told the assured to go before a Justice of the Peace and make proof of the loss, saying he had blanks for the purpose. They started together, and then occurred several propositions of terms and of settlement, and an attempt to fix the same, which, however were not agreed upon, Finally the adjuster parted with the assured, saying he had not time to attend to the business then, and left a proposition to pay a certain sum, which was not then accepted, and was afterwards withdrawn. Now, all this might have been a waiver of time, and justified the delay in making proof of loss and complying with the requirements of the sixth condition of the policy : but clearly it was no evidence of a waiver of all its terms. When informed of the withdrawal of the last offer, the adjuster not having returned, it was the duty of the assured then to have complied with the condition. Not having done so we cannot say the Court erred in non-suiting the plaintiff.

Judgment affirmed.

Warner then brought suit on June 4th, 18 Í8. The plaintiff declared on the policy, and also specially on the agreement or offer of the adjuster of the company, to pay $600, and the acceptance, by the plaintiff, of the same within the time given him to accept it, and before the offer was withdrawn.

On the trial of this cause, the court, on motion of the defendant’s counsel, ordered a compulsory non-suit on the ground that there had been no proofs of loss ; that this suit had not been brought within a year from the loss, both of which were required by conditions in the policy, and because there was not sufficient evidence of an adjustment of the loss, and an agreement to pay $600, to leave to the jury. This non-suit the court, on motion, refused to take off. The entering of judgment of non-suit, and the refusal to take it off, are the errors complained of.

D. C. McCoy, Esq., for plaintiff argued that the noD-suit in the first case was not a bar to this; Fleming vs. Insurance Co., Brightly 102; Bournonville vs. Goodall, 10 Barr 133. A limitation or condition in a policy of insurance intended for the benefit of the company may be waived and the question of waiver is for the jury; Coursin vs. Penna. Ins. Co., 10 Wright 323; Farmers’ Ins. Co. vs. Taylor, 23 P. F. S. 342; Commonwealth Ins. Co. vs. Sennett, 5 Wr. 161; Inland Ins. Co. vs. Stauffer, 9 Casey 397; Franklin Fire Ins. Co. vs. Updegraff, 7 Wr. 350; Cochran vs. Crawford County Ins. Co., 6 W. N. C. 498.

The settlement of the existing controversy was a sufficient consideration for the offer, and if the offer was accepted, estops the company from setting up any defence they had at that time; Chamberlain vs. McClurg, 8 W. & S. 31. There was sufficient evidence of acceptance to go to the jury, for Warner complied with it. Patton vs. Hassinger, 19 P. F. S. 314.

C. O. Bowman, Esq., contra.

The Supreme Court affirmed the judgment of the Court below on January 5, 1880, in the following opinion :

Pee Cueiam.

As far as regards the fact that the action had not been brought within ayear from the loss, it was clearly an unanswerable objection to any recovery upon the policy. But there was also a count in the declaration on an alleged agreement of compromise of the company to pay $600. Upon an examination of the testimony, we think there was not sufficient evidence to submit to the jury as to that. The only evidence that Poster, the adjuster, admitting that he had power to make the compromise, had authorized Sweet to settle with the plaintiff, was .Sweet’s own declaration to that effect, which was clearly insufficient. Besides, when the plaintiff accepted the proposition Sweet told him it had been withdrawn.

Judgment affirmed.  