
    UNIVERSAL FIRE INSURANCE CO. VS. SWARTZ.
    "Where a party denies the existence of a written instrument, he cannot complain of the admission of secondary evidence, to prove its contents, without a formal notice to produce the writing.
    An assignment of a policy of insurance endorsed by the agent thereon, before -delivery, and without notice to the company, for the purpose of correcting a mistake in the name of the policy holder, will not avoid the policy.
    Error to Common Pleas No. 2, of Philadelphia County: No. 149 January Term, 1884.
    This was an action of debt upon an insurance policy, brought by Ered. K. Swartz and Esiabella, his wife, to the use of Beck and Miller, against the Universal Fire Insurance Co. The policy of insurance had by mistake been made out in the name of Fred. K. Swartz, instead of his wife Esiabella. The agent’s attention was called to it, and he drew up. an assignment of the joolicy to Mrs. Swartz, on the back of the policy, before delivery, and delivered it in that condition, without notifying the company. The policy contained a clause, that any assignment of it, without the consent of the company endorsed thereon rendered it void. The plaintiffs below alleged, that the President of the Insurance Co. had, after a dispute and negotiation with Swartz, as to the amount of the loss, made a settlement with Swartz, fixing the amount at $675, and drew up a paper to that effect, which Swartz signed, and which Cross, the president, took away with him. The counsel for the Insurance Co. said they had not such a paper, and the Court without requiring the plaintiff to give formal notice to produce it, permitted the plaintiff to give secondary evidence of its contents. A copy of a notice of an assessment was also admitted, as evidence of this alleged settlement; as it stated that the assessment was levied to pay certain specified losses, and the Swartz claim of $675,.was one of them ; which was stated to have been adjusted. There was also evidence that Hunsberger, an agent of the Insurance Co., had forwarded proofs of loss within the time required.' The judge charged the jury, inter alia, as follows :
    It is not in dispute that the building of the plaintiff was insured in this company, nor that it was destroyed by fire as alleged. The defence is a purely technical one; 1st, that the proofs required by the policy were not furnished within thirty days after the loss ; 2nd, that the policy was assigned to Mrs. Swartz, without the approval of the company, before the loss occurred; 3rd, that this action was not brought within six months after the occurrence of the loss. I have only to say that, if you believe from the plaintiff’s testimony that Mr. Hunsberger gave notice of the fire to the company,, and that Mr. Cross visited the premises, and within the thirty days agreed with Swartz, Miller and Beck to pay $675, and that the claim was treated by the company as an adjusted loss, and so carried on their books, and that promises were made by the officers of the Company at their office in Philadelphia within six months from the date of the fire, to Beck and Miller to pay them, the failure of the plaintiffs to comply with these conditions would not prevent their recovering the amount of the loss, as agreed upon. If you find these facts for the plaintiffs, then your verdict should be-for them, for the amount claimed.” The Court also had refused to affirm certain points of the Insurance Co. to the effect that the plaintiffs could not recover on account of their failure to-comply with the conditions of the policy, relative to notices and time of bringing suit, and the assignment of the policy, without the consent of the company. The jury rendered a verdict in favor of the plaintiff for $675. The Insurance Company then took a writ of error, complaining of the admission of the-evidence above set forth and the answers to the points.
    
      James C. Sellers, Esq. for plaintiff in error
    argued, that it was error to admit secondary evidence of an alleged written agreement, without a notice to produce the original; Carland vs. Cunningham, 37 Pa. 228; Milliken vs. Barr, 7 Pa. 23; Alexander vs. Coulter, 2 S. & R. 494. The assignment of the policy was a breach of the condition, and defeated the right to recover; Ferree vs. Oxford Ins. Co., 67 Pa. 373; Girard Ins. Co. vs. Hebard, 95 Pa. 45. There can be no recovery, as the conditions, were not complied with, and suit was not brought within the-time limited in the policy; Commonwealth Ins. Co. vs. Sennett, 41 Pa. 161; Beatty vs. Lycoming Ins. Co., 66 Pa. 9; Mueller vs. South Side Ins. Co., 87 Pa. 399; Northwestern Ins. Co. vs. Oil Co., 31 Pa. 448; Farmers' Ins. Co. vs. Barr, 94 Pa. 345; Waynesboro Ins. Co. vs. Conover, 98 Pa. 484; Pottsville Ins. Co. vs. Improvement Co., 100 Pa. 137; Flaherty vs. Germania Ins. Co., 1 W. N. C. 352.
    
      T. E. White, Esq., contra,
    
    argued that as the Insurance Co.. denied the existence of any written agreement of adjustment,, it was not injured by the omission of a formal notice to produce it; besides the pleadings, informed them that plaintiffs relied upon the adjustment. The adjustment made it unnecessary to-prove compliance with-any of the conditions of the policy ; and enabled the plaintiffs to recover on the adjustment, as on an account stated ; Illinois Mutual Ins. Co. vs. Archdeacon, 82 Ill. 236; Phillips on Insurance Sect. 1815; Parke on Insurance, Vol. 1, page 256.
   The Supreme Court affirmed the judgment of the Common Pleas, on April 14th, 1884, in the following opinion:

Per Curiam :

As the plaintiff in error denied the existence of the alleged written instrument, it was not prejudiced by the omission of a notice to produce it. The rule as to giving notice to produce a writing in the possession of the opposite party, before parol evidence of its contents can be given cannot be invoked under the evidence in this ease. The mistake in the name of the owner of the property was discovered, and the correction made "by the agent of the company, before the policy was delivered. We think the evidence of a waiver of the* conditions of the policy, set up to defeat a recovery, was sufficient to submit to the jury. We discover no sufficient error in the record to call for a reversal.

Judgment affirmed.  