
    Isaac Davis, Resp’t, v. Grand Rapids Fire Insurance Company, App’lt.
    
      (Buffalo Superior Court, General Term,
    
    
      Filed December 23, 1895.)
    
    1. Pleading—Complaint—Insurance.
    Where the complaint in an action on a fire insurance policy states the issuance of the policy to plaintiff, describes the property insured in the same words as used iu the policy and makes the policy a part of the complaint, and the policy requires unconditional and sole ownership by plaintiff, the written consent of the company to be attached or appended to the policy in the event that interests other than those possessed by the insured exist and that the property should be the insured’s own, held in trust, but not removed, such requirements are to be construed as forming part of the complaint, and both together show that the insured was owner or holder in trust of the property when the insurance was effected, and it will be presumed that he continues as such owner or holder, in the absence of anything upon the policy to show that any one else held or had acquired any interest therein at the time.
    2. Same—Amendment on appeal.
    Where the evidence establishes sole ownership in the plaintiff, it is the duty of the appellate court to amend the complaint to conform thereto, if essential to support the judgment.
    3. Insurance—Proofs qf loss.
    Where, in an action on a fire insurance policy for goods totally destroyed by fire, it appears that the company, in objecting to the proofs of loss, required the insured to make a complete inventory, stating quantity and quality of each article, and amounts claimed thereon, and the cash value of each item and the amount of loss thereon, and there is an impossibility of compliance in this respect from the fact that the goods not specified in proofs of loss were burned, and, as to the goods not burned, the representative of the company and the insured made an inventory, the proofs of loss are not open to the objection that the insured failed to comply with the requirements of the policy.
    
      4. Same—Incumbrances.
    Where the proofs of loss state that the property belonged to the insured and no other person or persons had any interest therein, they state, in effect, that there was no incumbrance on it.
    6. Same—Conditions—Breach.
    Where the liability has been fixed by a loss which is brought within the range of the policy, the insured will not be deprived of his right to indemnity by a narrow and technical construction of the conditions and stipulations which prescribed the former requisite, by which that right is .to he made available; on the contrary, a liberal and reasonable construction,of them will be given. So held, where a fire insurance policy, giving the company the option to take all or any part of the articles insured at an apprised value “within a reasonable time, on giving notice, within thirty days after the receipt of the proof herein required of its intention to do so,'” and it appeared that the fire occurred November 10; that the company was immediately notified; that the proofs of loss were dated November 29tli, and received by the company December 5th; that the insured sold the goods at auction November 29th; that notice of the sale was published in the daily papers three days before the sale; that the company was notified of it by telegram; that several people were at the sale; that the company’s agent had previously taken an inventory; that no demand for any other appraisement was made; that, by the terms of the policy, the insured could not abandon the property to defendant, and it did not appear that the goods were worth more than the price obtained.
    , Appeal from a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Adelbert Moot, for app’lt;
    Moses Shire, for resp’t.
   HATCH, J.

We have read with care the voluminous record in this case, and with interest the exhaustive discussion of the testimony in the "brief submitted by the learned counsel for the appellant; and, while we find much testimony and some basis for .suspicion respecting the entire integrity of the claim of loss and its extent, we are constrained to hold that plaintiff’s claim did not lack a sufficient support of testimony to present a question of fact for the jury to decide, upon all the essential features requisite to find the verdict in his favor. It might he of interest to the parties^ if not satisfying to each, to here set down the testimony and process of reasoning by which we reach this result, but it would prove of little value and establish no precedent.

Respecting plaintiff’s interest in the property, the complaint was sufficient. It states the issuance to plaintiff of the policy, describes the property insured in the same words as used therein, and makes the same a part of the complaint. Reference to the eleventh clause in the policy shows that its requirement was unconditional and sole ownership; and by the fifty-sixth clause the written consent of the company is required to he attached or appended to the policy in the event that interests other than those possessed by the insured exist. Referring to the language descriptive of the property and its ownership, the requirement is that it shall he his own, held in trust, but not removed. These requirements are to "be construed as forming a part of the complaint, and, in substance, the allegations and policy show that the plaintiff was owner or holder in trust of the property when the insurance was effected; and that he so continued as owner or holder will be presumed, as nothing appeared upon the policy to show that, any one else held or had acquired any interest therein at any time. If, however, the rule were different, the, evidence establishes sole ownership in the plaintiff, and it would now be-our duty to amend the complaint to conform thereto, if Essential to support the judgment. Harris v. Tumbridge, 83 N. Y. 92.

' In defendant’s motion for a nonsuit, at the close of the plaintiff’s case, and more especially at the close., of the proof, it is claimed that plaintiff had failed to show compliance with the con-. ditions of the policy subsequent to the fire in several particulars. It is not denied but that notice oE the fire was immediately given at the agency rom which the policy issued, and, if we assume that this was insufficient, it appears, in fact, that this notice was brought home to the company, and that, in fact, their representative was at the scene of the fire shortly after it occurred. The proofs of loss bore date FTovember 29, 1893, and were stamped as received by the company on December 5th. The fire occurred FTovember 10th. In respect, therefore, to the notice of the fire and the time of filing proofs of loss, there was a substantial compliance with the requirements of the policy. The proofs of loss were retained by the defendant without objection, so far as the record shows, until January 2, 1894, nearly a month from time of reception, when a letter was 'written objecting to the same, and requiring further proof in that regard. It has been settled that retaining proofs of loss without objection is a waiver of any defects contained therein. Keeney v. Insurance Co., 71 N. Y. 396. And where the company retained proofs of loss for a period of twenty-three days, and then returned them, coupled with circumstances showing want of good faith on the part of the company, it was held that the jury were authorized to find a waiver of the conditions. Paltrovitch v. Insurance Co., 143 N. Y 73; 60 St. Rep. 462. The rule would therefore seem to be that where proofs of loss are retained or held for a time, and then returned, dependent somewhat upon the particular circumstances of the case, it may be made a basis for the jury to find a waiver of compliance with the conditions.

The first objection which the company made required plaintiff to make a complete inventory, stating quantity and cost of each article, and amounts claimed thereon; also cash value of each item, and amount of loss thereon; all incumbrances thereon, and any changes in the title, use, occupation, location, possession, or exposure of the property since the issuing of said policy. The plaintiff replied to the first two objections, under date of January 9th, claiming that, as the goods not specified in the proof of loss were burned, there was an impossibility of compliance in that respect, and that the parties woiild be, of necessity, relegated to the books to determine it; as to the third, that the proofs stated there was no incnmbrance; and the last, that there had been no change. Reference to the proofs of loss shows that the claim as stated was based upon the inventory of purchase, goods since purchased, labor on made-up garments, less the sales, profits thereon, and what was realized upon the sale of stock after the fire. The claim being for goods absolutely destroyed by the fire, the proofs of loss could not practically contain an itemized statement of them, and plaintiff was right in insisting that impossibilities were not required, and that the clause in the' policy related to goods saved from the fire, not those that were burned. As to those not burned, defendant’s representative made an inventory, in company with a representative of plaintiff. The first two objections were therefore without merit. The proofs stated that the property belonged to the assured, and no other person or persons had any interest therein. This was a practical statement that there was no incumbrance upon the property. The last ground of objection is found stated in the proofs of loss in nearly the identical words of the objection. It therefore appears with some clearness that the objections to the proofs of loss authorized the jury to find that defendant waived whatever of defects there wefe.

It is further claimed that plaintiff violated the provisions of the policy in selling the goods. It appeared that the goods were sold at auction on November 29th, Tuesday; that notice of the auction was published in two daily papers on the Saturday prior thereto; that the defendant was notified by telegram of the sale (at what particular time does not appear); and that there were several people at the sale. The goods which'survived the fire brought at such sale $250. Prior to this time the -inventory by defendant’s agent had been taken, and the kind, quality, and value of these goods were then known. No demand .for any other appraisement had then been made, or was there after made, and it does not appear from any witness for defendant that the goods were worth more than' the price at which they sold. Plaintiff claims they brought all they were worth. The clause in the policy provides that “it shall be optional, however, with this company, to take all, or any part, of the articles at such ascertained or appraised value, * * * within a reasonable time, on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do.” No claim is made that the option here provided for was ever exercised, or attempted to be exercised, or that any notice of such intention was ever given. The basis upon which this step could be taken existed because the value had been ascertained, the proofs of loss were served, and, if, defendant proposed to exercise its rights, it had the reserved thirty days in which to do it. The fact that plaintiff sold before the expiration of the time did not at all affect the right of the defendant to demand compliance with this condition. But, before it could put plaintiff in default of a violated condition, it must have itself taken steps to show that it wished to avail itself of the option. ¡Not having done that, plaintiff is not in fault for selling. He was required to do something, as, by the express provisions of the policy, he'could not abandon the property to defendant. It is therefore sufficient to say that defendant did not create the condition which could be violated by plaintiff; consequently there was no violation of any condition. And, in addition, defendant is not shown to have been prejudiced by anything that was done in this regard. The principle of the decision in McNally v. Phoenix Insurance Co., 137 N. Y. 389; 50 St. Rep. 680, applies to this case; and, in view of it, we do not think there has been such departure from the terms and conditions of the policy as will work a forfeiture.

We have examined the other exceptions in the case, but are unable to see error therein.

The judgment and order appealed from should therefore be affirmed, with costs.  