
    HENRY McDERMOTT, Plaintiff, v. THE LYCOMING FIRE INSURANCE COMPANY, Defendant.
    I. Insurance Laxo.
    
    1. Conditions precedent.
    
      (a) Notice and proofs of bss.
    
    1. The loss under a policy was not payable until sixty days after due notice and proof of the same should have been made by the assured and received at the office of the company in accordance with the terms and provisions of the policy. By the terms and provisions of the policy, persons sustaining loss or damage were required to “forthwith give notice of said loss to the secretary of the company, and within thirty days after said loss" to “render to the secretary a particular account of such loss,” containing certain specified matters.
    HELD,
    that the giving of such notice and the rendering of such account were conditions precedent.
    (5) Time, essence of contract.
    
    1. The prescribed time within which the account is to be rendered is of the essence of the contract. A strict compliance is necessary.
    
      (a) Nine days after the time is too late.
    
    (c) Waiver of non-compliance as to time.
    1. Retention of proofs; statement at time of serving that they would not he received as proofs ; is not.
    
    
      (a) Proofs were rendered nine days too late; the agent of the company on whom they were served (according to the evidence most favorable to the plaintiff) said “they would not accept these as proofs of loss.” Four days after this, plaintiff’s attorneys were notified that the proofs were too late. The company retained the proofs and did not return or offer to return them.
    Before Speir and Sanford, JJ.
    
      Decided November 4,1878.
    
      Exceptions ordered to be heard at general term.
    The action is brought to recover the sum of $5,000 under a policy of insurance issued by the defendant to that amount upon the dwelling and boarding-house of the plaintiff, and the furniture therein, and a renewal of the policy and its continuance in force to July 2, 1875; subject to all the conditions in the original policy.
    The property insured was destroyed by fire on December 15, 1874.
    At the close of the trial, upon motion of defendant’s counsel, the court directed the jury to find a verdict for the defendant. The exceptions were directed to be heard at the general term in the first instance.
    The facts pertinent to the questions discussed appear sufficiently in the opinion.
    
      Edward S. Clinch, attorney, and of counsel, for plaintiff, urged :
    I. The defendant cannot avail itself of any provision in the policy not pleaded in its answer, and this case must be determined solely by the provisions pleaded. If there be in the policy any provision for forfeiture for non-compliance with its terms, that provision must be disregarded (McMaster v. Ins. Co. of N. A., 55 N. Y. 233; Richtmeyer v. Remsen, 38 Id. 206; N. Y. C. Ins. Co. v. N. P. Ins. Co., 20 Barb. 468).
    II. Contracts of insurance do not in any respect differ from other written instruments, but are interpreted by the same rules (Savage v. Howard Ins. Co., 52 N. Y. 504); and conditions precedent in them will be construed strictly against the insurers, who impose them for their own benefit, where' a failure to comply with such conditions is claimed to work a forfeiture (Walsh v. Ins. Co., 32 N. Y. 427; Hitchcock v. North Western Ins. Co., 26 Id. 69 ; White v. H. R. Ins. Co., 15 How. Pr. 288). In the absence of any notice by the defendant to the plaintiff, that a failure to comply with the provisions of the policy in respect to the service of proofs of loss will work a forfeiture, the courts cannot under any proper rules of construction, and should not in equity, supply the defect, if there be any, and give that effect to the provision which the provision itself does not say it shall have (McMaster v. Ins. Co. of N. A., supra; Bumstead v. Dividend Mut. Ins. Co., 12 N. Y. 81; Bennett v. Lycoming Co. Mut. Ins. Co., 67 Id. 274).
    III. The language of the provision pleaded is directory, and no penalty being provided for a failure to strictly comply with it, it has not the effect of a mandatory provision, or one absolutely essential to be followed with exactness (Savage v. Howard Ins. Co., supra; People v. Cook, 8 N. Y. 67, 89).
    IV. It is uniformly held that the clause of a policy requiring proofs of loss, is to be liberally construed in favor of the insured (Cases cited under second point). And therefore substantial compliance with such clause is sufficient to charge the insurers (Bennett v. Lycoming Co. Mut. Ins. Co., supra; Bumstead v. Dividend Mut. Ins. Co., supra).
    
    V. The report of the case of Blossom v. Lycoming Fire Ins. Co. (64 N. Y. 162), upon the authority of which the court below directed a verdict for the defendant, does not disclose the form of the policy, or whether the answer set up as matters of defense any other provision of the policy than that requiring proofs of loss to be served within thirty days, and there was in that case no evidence of a waiver by the defendant of this provision of the policy (Opinion of Allen, J.); but it did appear that the proofs of loss were served one hundred and twenty-one days after the fire, and that all the court held was, that a substantial compliance with the provision of the policy was necessary to enable the plaintiff to recover, and that there was no substantial compliance by the insured.
    VI. A substantial compliance with the terms of a contract, refers either to the time or to the manner of its performance, irrespective of the time of the. performance. In each case, unless time is made especially of the essence of the contract, and non-performance of the terms of the contract by the one is to the detriment of the other party, a substantial compliance is all that will be required, and this whether the condition be precedent or subsequent (Smith v. Gugerty, 4 Barb. 614; 2 Parsons on Contracts, 461; 3 Id. 384; Brashier v. Gratz, 6 Wheat. 533 [Marshall, Ch. J.]).
    VII. Whether there was a waiver by the defendant of the provision of the policy respecting the service of proofs of loss, was a question for the jury (Flanders on Ins. [2nd Ed.] 576 ; Franklin Fire Ins. Co. Hamill, 6 Gill [Md.] 87; Underwood v. Farmers’ Joint Stock Ins. Co., 57 N. Y. 507). And this question was fairly raised by the testimony. The defendant’s witness testified that the proofs of loss have been in defendant’s continuous possession since they were first received, and that at the time the proofs of loss were served on the company, the person making the service (plaintiff’s witness, Garrett) was told they were too late. Gárrett testified that at this time he was told that the company would not accept the papers as proofs of loss—an objection not to the time of service, but to the form of the papers. Again, it was not until four days after the service of these papers that the defendant’s agents notified Mr. Clinch that the proofs were served too late. If this notice had been given when the proofs were served, there was no necessity for this letter, and the fact that it was written is evidence of the failure to have given the notice previously. This testimony certainly entitled the plaintiff to have the question submitted to the jury, and his exception to the court’s refusal to submit it was well taken.
    VIII. The remaining exceptions of the plaintiff to the court’s refusal to submit questions to the jury should be sustained. The facts presented in the requests were material, and the jury should have been permitted to pass rupon them.
    IX. Slight evidence of waiver is sufficient to defeat a forfeiture, and courts of justice will not give effect to a forfeiture unless compelled to do so (Ripley v. Ins. Co., 17 How. Pr. 444; Hincken v. Mut. Ben. Life Ins. Co., 50 N. Y. 657; Walsh v. Washington Ins. Co., supra).
    
    X. The notice to Mr. Clinch contained in the letter of January 27, 1875, was not a notice to the plaintiff, and was inoperative so far as it is claimed to be a notice to plaintiff that the proofs were too late. Mr. Clinch was employed simply to prepare and have the proofs of loss served, and was not an agent or attorney of the plaintiff for any other purpose. While it is true that to the person making the service the defendant would be entitled to make any objections to the reception of the proofs of loss, with the same effect as if he were the plaintiff, it is also true that with the service of the proofs the agency or attorneyship ended, and that any subsequent communication with such agent or attorney would not be a communication to the plaintiff (Story on Agency, § 140). The following cases also were cited: Planters’ Mutual Ins. Co. v. Deford, 38 Md. 382; Wightman v. West. Mar. and Fire Ins. Co., 8 Rob. La. 442; Phillips v. Pulman Fire Ins. Co., 28 Wis. 472; Lippold v. Continental Ins. Co., 3 Neb. 391; Egleston v. N. Y. Life Ins. Co., U. S. Supreme Court, «decided April 29, 1878, not reported.
    
      Edward B. Oowles, attorney, and of counsel, for defendant, urged:
    I. In order to entitle plaintiff to recover, he must prove compliance with all the conditions on his part to be done and performed. The conditions in the policy, as to giving notice forthwith, and within thirty days serving particular account of loss, are and have been held to be conditions precedent. One of the earliest insurance case's which establishes this point is that of Worsley v. Wood (6 Term Rep. 710). ‘ The rule stated in this early case is the law of to-day (Inman v. Western Fire Ins. Co., 12 Wend. 452; Howard v. City Fire Ins. Co., 4 Den. 508; 2 Philips on Ins. 653, 655; Flanders on Ins. 535, 563, 564, 567, 578, 593; 2 Am. Leading Cases, 920, 924, 925 ; Ripley v. Ætna Ins. Co., 30 N. Y. 136 ; Beatty v. Lycoming Co. Mut. Ins. Co., 16 P. F. Smith, 9 ; Bennett v. Lycoming Co. Mut. Ins. Co., 67 N. Y. 274; Cornell v. Milwaukie Mut. Ins. Co., 18 Wis. 257; Mason v. Harvey, 20 Eng. Law & Eq. 541; Underwood v. Farmers’ Joint Stock Ins. Co., 57 N. Y. 500; Blossom v. Lycoming Fire Ins. Co., 64 Id. 162 ; 3 Kent Com. [7th ed.] 454).
    II. Plaintiff offered no proof showing or tending to show that he gave notice forthwith to the secretary of the defendant company, or to the company itself, in any way save the account of loss thirty-nine days after the fire. This alone would preclude him from recovering (Inman v. Western Fire Ins. Co., 12 Wend. 452, 460, 461).
    III. But more than this, he, has failed in another respect which is fatal and irremediable.. The policy calls for a particular account of loss to be served on the secretary within thirty days after the loss. The account was not served within the thirty days, and he therefore cannot recover (Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 162; Underwood v. Farmers’ Joint Stock Ins. Co., 57 Id. 506 ; 2 Am. Leading Cases, 920, 924, 925; Beatty v. Lycoming Co. Mut. Ins. Co., 16 P. F. Smith [9 Penn.] 9 ; Ripley v. Ætna Ins. Co., 30 N. Y. 136). The only manner in which this defect in plaintiff’s case could be remedied would be by: 1. Proof of something which defendants said or did before the thirty days elapsed, which justified the plaintiff in believing that proofs of loss would not be required, and caused him to omit serving the same in time ; or, 2. An express waiver founded upon consideration after default. Neither of these elements are found in this case.
    IV. The plaintiff strives to remedy the defect in his case by urging that he complied substantially with the provisions of the policy in that ■ he served a particular account of loss thirty-nine days after the fire instead of thirty. But the trial judge rightly gave effect to the provisions of the policy, which embody the contract of the parties. Departure from that would lead to the most absurd results. If nine days too late is sufficient, ten must be ; if ten days, then ten months, and so on to any length of time. On the principle contended for by plaintiff the court, instead of enforcing the contract which the parties have made, would nullify it and provide a new one. The plaintiff has misinterpreted the doctrine of substantial compliance. It applies to matters of form, but not to those of time (See cases, supra).,
    
   Br the Court.—Speir, J.—Among

the multitude of provisions in and connected with the policy in this case, and by which the defendants have attempted to •shield themselves from liability, the following need only be considered.

The policy provides that persons sustaining loss or damage by fire shall forthwith give notice of said loss to the secretary of the company, and, within thirty days after said loss, shall render to the secretary a particular account of such loss, signed and sworn to by them, stating any and what other insurance has been made on the same property, giving copies of the written portions, &c. &c.

It is claimed on the part of the défendant that these conditions as to giving noticq forthwith to defendant’s secretary and serving within thirty days after the fire a particular account of loss, &c., were not complied with as to time.

The defendant was a Pennsylvania company, and in July, 1873, when the policy was issued, Chamberlain & Co. were its local agents at New York, who countersigned it. The renewal of the policy, which was in force at the time of the fire was also countersigned by the agents in New York. On January 23, 1875, nine days after the time limited by the policy had expired, Mr. Clinch, the plaintiff’s attorney, served a particular, verified account of loss on defendants at the New York agency of the company. The defendants’ witness testified when the proof of loss was served upon the defendants they immediately answered “that the proofs of loss were too late, and that they would notify them in a few days.” The plaintiff’s witness testified that the defendants stated at the time these papers were served that “ they would not accept them as proof of loss.” On January 27,1875, two days after the service, the agents addressed a note to the plaintiff’ s attorney stating ‘ ‘ that the papers purporting to be proof of loss from Henry McDermott, of Par Rock-away, L. I., left at their office January 23, 1875, were too late. ’ ’ The proofs of loss remained in the continued possession of the defendants.

It is not claimed that the plaintiff gave notice of the loss by fire forthwith to the secretary of the defendant’s company, as required by the policy, or any notice whatever, excepting the account of loss, which was served thirty-nine days after the fire.

There can be no question that the notice of loss by fire to be forthwith given to the secrétary of the company, and the service upon defendant, within thirty-days after the loss, of a particular account verified by the plaintiff, of other insurance made on the same property, are conditions precedent. Whether the plaintiff has entered into an improvident contract or otherwise, has nothing to do with the case. It is sufficient that the insurer and insured have agreed upon the terms of the contract, and its validity must be upheld by force of these terms and conditions. If lawful in themselves, whether reasonable or unreasonable, the parties alone must determine. In this respect contracts of insurance, like other written instruments, are construed to give effect to the intention of the parties as indicated by the language employed by them (Phil. on Ins. § 122; Springfield F. and M. Ins. Co., 43 N. Y. 394). When the language used is susceptible of different constructions, it is undoubtedly the duty of the court to "give to the stipulations a fair and reasonable interpretation. Here there is no ground for a difference of opinion as to the positive purport and meaning of these provisions.

The plaintiff requested the court to submit the question to the jury whether there was a waiver of these provisions.

Upon an attentive review of the case I can find no evidence of a waiver of these conditions by the defendant. It does not appear that the plaintiff and defendant had any negotiation or communication whatever with each other or their agents, directly or indirectly, in relation to the matter, until the expiration of thirty-nine days after the fire. The defendant had not done or said anything before the thirty days had elapsed which could justify the plaintiff in believing that proof of loss would not be required, and thereby cause him to omit serving the same in time. In retaining the account of the proofs of loss there certainly was no waiver of the condition. At the time of serving the verified account required by the policy upon the defendant, the plaintiff had forfeited his rights under the policy. There can be no waiver of a condition precedent except there be in the case an element of estoppel (Underwood v. Farmers’ Joint Stock Ins. Co., 57 N. Y. 506). In Ripley v. Ætna Ins. Co., 30 N. Y. 136, the rule is laid down by Mullen, J. He says: “It seems to me that a waiver, to be operative, must be supported by an agreement founded on h valuable consideration; or, the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of condition.”

Judgment should be ordered for defendant on the verdict, with costs.

Sanford, J., concurred.  