
    Emory J. Bishop, Resp’t, v. The Agricultural Insurance Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 20, 1892.)
    
    1, Insurance (vire)—Waiver of proof of loss.
    Where the parties more than seventy days after the fire enter into a contract in writing to submit the question of the amount of loss to appraisement, it is a waiver of the provisions of the policy that proofs of loss must be furnished within sixty days.
    2. Same.
    Where the general agent and appraiser who called to settle the loss and execute the appraisal agreement said that proofs of loss need not be furnished, as the damages would be soon appraised and settled, and where the local agent also said after the fire that it would be unnecessary to furnish, proofs of loss, the question of waiver is one of fact for the jury.
    
      3. Same.
    Where the company’s appraiser refuses to agree upon “a disinterested umpire,” the fact that an appraisal has not been made is not a defense to an action upon the policy.
    Appeal from a judgment of the general term of the supreme •court in the fifth judicial department, which affirmed a judgment entered on a verdict.
    October 15, 1887, the plaintiff’s barn and its contents were destroyed by fire, at which time the property was insured by the defendant for $3,100, under a policy known as “ Standard Fire Insurance Policy of the State of New York.”
    October 17th the plaintiff gave personal notice of the loss to Samuel E. Clark, defendant’s local agent who effected the insurance, and requested him to inform the defendant of the fire, which he agreed to do, and immediately did. On the 21st of that month Addice E. Dewey, defendant’s general agent and adjuster, called on the plaintiff pursuant to the notice and had an interview about settling the loss.
    The plaintiff testified, and in this he was not disputed, that the liability of the defendant was not denied, the only controversy being over the value of the property destroyed, which it was agreed should be appraised pursuant to the following provision in the policy: “ In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested, umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall, determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.”
    The plaintiff and the defendant, by its general agent and adjuster, on that day entered into a written contract of which the following are the material parts :
    “It is hereby agreed by Emory J. Bishop, of West Barre, of the first part, and the Agricultural Insurance Company, of Water-town, New York, of the second part, that David I. Langworthy, together with Charles H. Headley (with a third person, to be appointed by them before the appraisal, who shall umpire on matters •of difference only), shall appraise and estimate at the actual cash value the damage by fire on the 15th day of October, 1887, to the property belonging to said Emory Bishop as specified herein, which appraisement or estimate by them, or any two of them, in writing, as to the amount of such loss or damage, shall be binding on both parties; it being understood that this appointment is without reference to any other question or matter of difference within the terms and conditions of the insurance, and is of binding effect only as far as regards the actual cash value of or damage to such property,” * * * “ returning said damage in the form of a detailed statement and in accordance with this agreement.”
    
      The plaintiff selected Charles H. Headley, and the defendant David 1. Langworthy, for appraisers.
    November 4th, Langworthy called on Headley at Medina, a village ten miles from the plaintiff’s residence, for the purpose of first selecting an umpire, and then going to the scene of the fire and appraising the value of the property destroyed. Headley being on that day engaged in a law suit declined' to proceed with the business, but agreed that he would on some day thereafter. Langworthy and defendant’s local agent then called on the plaintiff at his home, and made some investigation into the value of the property destroyed. Nothing further was done until November 28th, when Headley wrote Langwortbv declining to act as an appraiser, and thereupon the latter wrote that fact to the plaintiff and requested the selection of another. December 22d the plaintiff telegraphed Langworthy that he had secured another appraiser and asked when he would make the appraisal. Thereupon Langworthy appointed December 30th, pursuant to which he met the plaintiff at Medina, and Alderson Nixon was selected in the place of Headley, and .his name inserted in the written agreement. Nixon and Langworthy separated on that day without agreeing upon an umpire. Nothing further was done in the matter until January 24th, 1888, when Langworthy inquired of Nixon by letter why he had not heard from him, and suggested that the matter should be closed up. February 6th, 1888, proofs of loss sufficient in form and substance were served on the defendant, but were rejected on the sole ground that they were not served within sixty days after the fire. February 23rd, Langworthy again wrote Nixon suggesting that the appraisal should be closed, but hearing nothing, again wrote on March 12th, insisting on the same thing. April 4th, Langworthy met Nixon at Medina and suggested different persons to act as umpire. On that day Nixon informed Langworthy that he had been directed by the plaintiff not to correspond with him,-and that he should have nothing further to do with making an appraisal.
    April 13, 1888, this action was begun, which resulted in a verdict and judgment for the plaintiff which was affirmed by the general term.
    
      S. M Mllcins, for resp’t; A. H. Sawyer, for app’lt.
    
      
       Affirming 30 St. Rep., 600.
    
   Follett, Ch. J.

But three of the many issues raised by the pleadings were contested at circuit: (1) Did the defendant unreasonably and in bad faith refuse to agree on an impartial person to act as umpire. (2.) Is the defendant estopped by its conduct from asserting as a defense the fact that plaintiff failed to serve proofs of loss within sixty days. (3) The value of the property destroyed.

The only questions argued in this court arise on the first ancL second of these issues, and are presented by the motion for a non-suit made at the close of the plaintiff’s evidence, renewed at the close of the evidence, by a motion to direct a verdict for the defendant, and bv the exceptions to the charge and refusals to charge. The original agreement naming the appraisers was draft■ed by the general agent of the defendant, was signed by him in behalf of the company, and by the plaintiff on the 21st of October, 1887, and was delivered to the defendant’s agent and taken away by him; December 30th, Langworthy produced the appraisal contract at Medina, erased Headley’s name and inserted Nixon’s in its place.

On this occasion Langworthy named three persons, any one of whom he would accept as umpire, all of whom were unknown to the plaintiff and Nixon, and they were unwilling to accept of either. Nixon selected several persons whom he was willing to accept, but the two appraisers separated without agreeing upon an umpire, and they never reached an agreement Langworthy would not accept of any person selected by Nixon, and Nixon would not of either of the three suggested by Langworthy. On the trial considerable evidence was given tending to show that the persons selected by Langworthy had been frequently employed by insurers as appraisers and umpires, and it was insisted that the defendant through its appraiser Langworthy réfused to agree upon “ a disinterested umpire.’’ If this was true, the fact that an •appraisal had not been made was not a defense to the action. Uhrig v. Williamsburgh Fire Ins. Co., 101 N. Y., 362; 1 St. Rep., 17. This question of fact was submitted to the jury under conservative instructions, and was found for the plaintiff. It cannot be said that there is no evidence in the record which tends to •sustain this branch of the verdict. There was no error in the refusal of the court to charge, in substance, that the defendant was not bound by whatever Langworthy did, or failed to do, in respect Ho the selection of an umpire. Langworthy was the nominee of the defendant and he owed a duty to select an umpire, and if he improperly neglected this duty the consequences cannot be charged to the plaintiff. Under the evidence the court was not required to charge that Langworthv did not represent the defendant in the conduct of the appraisal.

Among other provisions contained in the policy is a clause that the assured shall furnish proofs of loss to the insurer within sixty days after the fire, as is provided in lines 67 to 80, inclusive, in the “Standard Fire Insurance Policy of the state of New York.”

It is also prescribed by the Standard policy: “ This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act or proceeding on its part relating to the appraisal or to any examination herein provided for, and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required;” and it is now insisted that the defendant not having waived in writing the performance of the stipulation that proofs of loss should be furnished in sixty days, that' no recovery can be had on the policy.

A party to a contract, containing a provision that it shall not be modified or changed except by a writing signed by him, may by conduct estop himself from enforcing the provision against a party who has acted in reliance upon the conduct; and so the acts of an agent, who possesses the power of the principal, or who has been held out by the principal to possess his power in respect to the provision alleged to have been altered or changed, may also estop his principal. Messelback v. Norman, 122 N. Y., 578; 34 St. Rep., 549; Underwood v. Farmers' Joint Stock Ins. Co., 57 N. Y., 500.

December 30, 1887, more than seventy days after the fire, the parties entered into a contract in writing to submit the question of the amount of the loss to appraisement, which was a waiver of the provision in the policy, that proofs of loss must be furnished within sixty days. The evidence warrants the inference that this contract to submit the amount of loss to appraisers was continually in the hands of defendant from the date, October 21st, when first executed, until the time of the trial, and that the negotiations were not unknown to it In addition, the plaintiff and his wife testified, without objection, that when the general agent and appraiser of the defendant called to settle the loss and executed the appraisal agreement, he said that proofs of loss need not be furnished as the damages would be soon appraised and settled. This was denied by the general agent. The plaintiff also testified, without objection, that defendant’s local agent, who issued the policy, also told him, after the fire, that it would be unnecessary to furnish proofs of loss. This the local agent denied, but these issues were submitted to the jury and found for the plaintiff. Under such circumstances, the question whether the defendant had waived the presentation of proofs of loss was properly submitted to the jury as a question of fact.

It may be remarked, in passing, that no defense on the merits was presented to the jury, the payment of the policy being resisted solely on the grounds that an appraisement had not been had, and formal proofs of loss had not been served within the time limited by the policy.

The judgment should be affirmed, with costs.

All concur.  