
    [No. 12577.
    In Bank.
    March 22, 1889.]
    H. McCORMACK, Appellant, v. NORTH BRITISH INSURANCE COMPANY, Respondent.
    Rere Insurance—-Preliminary Proof of Loss—Maturity of Cause of Action—Nonsuit. —Where preliminary proof of loss is required by the policy, the assured must allege and prove that the proof has been made, or that the requirement has been waived. If this does not appear, action on the policy before presenting such proof is premature, and a nonsuit should be granted.
    Appeal from a judgment of the Superior Court of Yolo County.
    The facts are stated in the opinion of the court.
    
      
      E. B. Bush, and B. Clark, for Appellant.
    
      Van Ness & Boche, for Respondent.
    The failure to furnish the proper proof and official certificate according to the terms of the policy is fatal to a recovery. (May on Insurance, sec. 465; Doyle v. Phoenix Ins. Co., 44 Cal. 264; Civ. Code, sec. 2637; Columbian Ins. Co. v. Lawrence, 10 Pet. 507; Leadbetter v. Ætna Ins. Co., 13 Me. 265; Noonan v. Hartford Ins. Co., 21 Mo. 81; Johnson v. Phoenix Ins. Co., 112 Mass. 49; Home Ins. Co. v. Duke, 43 Ind. 418.)
   Works, J.

Action upon a fire insurance policy. Trial by the court. Motion for nonsuit on the ground, among others, that there was a failure to prove a compliance with the conditions of the policy relative to the making of the preliminary proofs of loss subsequent to the fire, and that the action was prematurely commenced, in that it had been commenced before proofs of loss were made.

The court below granted the nonsuit, and the plaintiff appeals.

The policy contained the usual condition as to the making of preliminary proof of loss, and provided that the amount to be paid under the policy should be paid “ sixty days after the proofs shall have been made by the assured and received at their office, and the loss shall have been ascertained and proved in accordance with the terms and provisions of the policy.”

Where such preliminary proof is required by the policy, the assured must allege and prove that the proof has been made or that the requirement has been waived. (Doyle v. Phoenix Ins. Co., 44 Cal. 264; May on Insurance, sec. 465.)

There was no evidence that the necessary proof of loss had been given, nor was it shown that such proof had been waived.

The nonsuit was therefore properly granted.

Judgment affirmed.

Paterson, J., Thornton, J., and Sharpstein, J., concurred.

McFarland, J.

I dissent. I think there was 'evidence that the proof was waived.

Beatty, O. J., being disqualified, did not participate-in the decision.

Rehearing denied.  