
    Penna. Fire Insurance Co. v. Drackett et al.
    
      Fire insurance policy — Consent by insured to arbitrate — Does-, not preclude in suit, claim for total loss — Section S6J¡3, Rev.. Stat.
    
    1. An insured, by consenting to arbitrate the amount of loss sustained by fire, in pursuance to the provisions o'f the policy,, is not precluded, in a suit upon the policy, from claiming and recovering as for a total loss, if the evidence sustains his claim. The provisions of section 3643, Revised Statutes, being founded upon public policy, the insured can not be held to a waiver of them.
    2. Where a building is só far destroyed by fire as to lose its identity and specific character as a building, and the parts that.remain can not be utilized to advantage in its reconstruction,, there is a total loss within the meaning of section 3643, Revised Statutes.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The action below was upon a policy of insurance on-a two-story frame house of the plaintiff. The amount, of the policy was $1,800; loss if any to be paid certain mortgagees as their respective interests might, ajipear. It contained a provision, among others, requiring the amount of the loss in case of fire, to be-submitted to arbitrators if the parties were unable to agree. A fire occurred, the amount of the loss was. submitted to arbitrators, selected by the company and the insured, and the loss was fixed by them at $1,113.-76. This the insured, claiming that there was a total, loss, refused to accept; and the suit was then brought. The company denied that there was a total loss, and further insisted on the provisions as to the arbitration. A trial was had which resulted in a verdict in. favor of the plaintiff for the full amount of the policy. A motion for a new trial ivas made on the grounds,, that the verdict was against the weight of the evidence, that the court had misdirected the jury, and had erred in the admission of evidence. The motion was overruled and judgment entered upon the verdict. A bill of exceptions, containing all the evidence and the charge and rulings of the court was taken, and made a part of the record. On error the judgment was affirmed by the circuit court. The errors assigned relate to the charge of the court and its rulings upon evidence.
    
      G. W. Fuller, for plaintiff in error.
    This court has held and it is therefore settled that section 3643, Revised Statutes, becomes a part of every insurance contract entered into in this state, and that notwithstanding any provision of the policy to the contrary, in case of total loss the insurer must pay the insured the full amount named in the policy provided the insured does nothing that prevents him claiming the advantage of the statute.
    Moreover, the Supreme Court of the United States has recently sustained the constitutionality of such laws in a case that went up from the state of Missouri. Orient Ins. Co. v. Daggs, 172 U. S., 557.
    The purposes for which this statute was enacted are quite clear, and have in fact been fully stated by this court in Ins. Co. v. Leslie, 47 Ohio St., 409; and in Sun Fire Office v. Clark, 53 Ohio St., 414. The Providence Washington Ins. Co. v. Wm. Grey, decided September 13, 1894, C. C. Ashtabula Co. This case seems to have been as to the questions involved, precisely like the one at bar, except that the award was also attacked for fraud and irregularities.
    It is hardly necessary to cite authorities upon the validity of such agreements in general. They have been recognized by all the courts from the United States Supreme Court down. Hamilton v. Ins. Co., 137 U. S., 370.
    There are comparatively few decisions on the question under discussion, owing, we suppose, to the fact that comparatively few states have adopted such a statute. Among them are Texas, Wisconsin, Misouri, New Hampshire, Nebraska and Ohio. And most of the cases decided under these statutes deal with definitions only.
    However, in Insurance Co. v. Eddy, 36 Neb., 461, it is held in a very muddy opinion that under a statute similar to ours an appraisal agreement after a total loss has no effect. But in that case there was no complete appraisal, and there was some evidence to the effect that this had been prevented by the appraiser selected by the insurer. Furthermore, the answer does not seem to rely upon the appraisal agreement, and the case really decides only that in case of total loss an appraisal is not necessary.
    Two Missouri cases, at least, hold that is a case of total loss, or where the property is “wholly destroyed,” an agreement to arbitrate is nudum pactum and consequently of no effect. These cases are: Ampleman v. Ins. Co., 35 Mo. App., 308; Baker v. Ins. Co., 57 Mo. App., 559.
    But these seem to have been cases of admitted total loss and probably such a ruling is correct under those circumstances.
    This same view of the law was taken by Lucas county Ohio circuit court in Insurance Co. v. Luce, 11 C. Ct., 476; 5 Circ. Dec. 210.
    We apprehend that this court will not extend the •operation of this statute beyond the manifest intentions of the legislature. Therefore the opinioh of the Supreme Court of Wisconsin, which was the pioneer state in adopting this character of statute, will be instructive. Reilly v. Ins. Co., 43 Wis., 455.
    The Wisconsin cases are sometimes cited as being authority for the position that such an agreement as the one in the case at bar is of no effect under the valued policy laws, so called. Particularly is Seyk v. Ins. Co., 74 Wis., 67, so cited. 2 Biddle Ins., section 1376, so construes the Wisconsin cases.
    In marine insurance there is actual total loss when the vessel ceases to exist in specie; becomes a mere-‘congeries of planks,’ incapable of being repaired; or whereby the peril insured against it is placed beyond the control of the insured and beyond his power of recovery.”
    
      “A constructive total loss is where the vessel remains in specie, and is susceptible of repairs or recovery, but at a.n expense, according to the English common law, exceeding its value when restored; and where the insured abandons the vessel to the underwriters.” Insurance Co. v. Sherlock, 25 Ohio St., 50, 64.
    Marine insurance having antedated fire insurance,, many of its rules and doctrines have been borrowed for this branch of the law. At least it appears that, in cases of total loss on buildings the cases involving-this question in marine insurance have been looked to. Consequently the salutary and equitable rule of constructive total loss seems to have been bodily adopted from marine insurance. And it has accordingly been uniformly held that where a building could not be repaired or restored except at a cost equal to or greater f.han the value when restored, the loss was total. We believe that there is no serious contention, but that this is good law.
    
      Nor do we believe that the statement of the law contained in the opinion of the court in McIntyre v. Ins. Co., 90 Tex., 170, followed by the trial court m this case in his general charge is assailable.
    
      Seyk v. Ins. Co., 74 Wis., 67, is cited as an authority lor the specific character definition; but note the language of the court from which it appears that either they considered the loss of specific character equivalent to destruction in specie in marine insurance, or that the words are mere surplusage, since it was apparent that all value was gone.
    See also the careful discussion of this case in Ostrander on Insurance, section 310. '
    Another Wisconsin case sometimes considered as approving this rule is Harriman v. Ins. Co., 49 Wis., 71, but the court with considerable particularity states that no part of the building could be used in rebuilding, and that the cost of removing the fragments would be more than their worth when reclaimed. Although quite unnecessary to apply the term to a building in such a condition, it could perhaps do no harm, the absence of value being clearly stated. It is evident that the court considered as the real test of total loss, the loss of value.
    The case of Oshkosh Packing & Provision Co. v. Ins. Co., 31 Fed., 200, comes perhaps nearest to declaring this rule in a construction of the Wisconsin statute, in the following language:
    “But even in that case the term loss of specific character and identity is given some meaning. It occurs evidently in the mind of the court when the building has become a broken mass, or so far in that condition that it cannot be properly any longer designated as a building.”
    
      2. May on Insurance, section 421a; 2 Biddle on Insurance, sections 1375 and 1376, discuss this subject but refer only to cases herein discussed, giving digests of the cases quoted, and are therefore of no value as references.
    
      Insurance Co. v. Fogarty, 86 U.S., (Wall 19.), 640, is cited as authority for the specific character rule. But this was a case of marine insurance, and while it apparently approves Judah v. Randall, 2 Caine’s cases, 324, where a carriage was held a total loss although the wheels remained, the decision has reference to the doctrine of actual total loss in marine insurance and in reality, it seems to us, is directed mainly against the idea that absolute, total extinction is essential. The policy covered “machinery.”
    This would indicate that the idea of loss of value for the original purpose was the controlling factor in the decision.
    Another case commonly cited in support of the specific character definition is Corbett v. Ins. Co., 85 Hunn., 250.
    
      Williams v. Ins. Co., 54 Cal., 442, is also cited as. supporting this proposition.
    The foregoing appear to be the leading cases which-to a greater or less extent seem to support the specific-character doctrine. Whether they do or not, they certainly do not give any reason to believe that to charge a jury as was charged in this case would be sufficient.
    As we have stated, we do not believe that the doctrine of specific character is correct, and in this we are supported by Ostrander on Insurance, sections 310, 311, 312, 313, and by several well considered cases. In Ampleman v. Ins. Co., 35 Mo. App., 308; Ostrander on Insurance, section 314.
    
      The case of McIntyre v. Ins. Co., 90 Tex., 170, contains as the view of the court as to the proper definition of total loss, the language substantially as given by the trial court in this case in his general charge, and consequently the case of Insurance Co. v. Garlington, 66 Tex., 103, insofar as it differs from the rule laid down in McIntyre v. Ins. Co., cannot be considered an authority.
    The case of Barnard v. Ins. Co., 38 Mo. App., 106, while still using the unfortunate term “identity,” is perhaps not far from the correct standard. 4 Joyce on Insurance, sections 3025-6-7-8-9.
    In other words, the jury might easily have found that a residence with the roof burned off as the record shows was the case with this building, and with one wall partly burned and the floors and interior damaged, had lost its identity and specific character as a residence, and was not a residence; and yet they might have found a large value remaining as a basis for a restoration of the building.
    If two or more instructions are inconsistent and calculated to mislead the jury or leave them in doubt as to the law, it is a cause for reversal. Bitting v. Ten Eyck, 82 Ind., 421; Somers v. Pumphrey, 24 Ind., 231; Somerlot v. Hamilton, 121 Ind., 87.
    An erroneous instruction is not cured by another instruction correctly stating the law, where the first instruction has not been withdrawn from the jury. Wenning et al. v. Teeple et al., 144 Ind., 189.
    IVhere the charge is confusing a new trial should be ordered. Washington Mut. Ins. Co. v. Mut. Ins. Co., 5 Ohio St., 450; White v. Thomas, 12 Ohio St., 312; Railway Co. v. Krouse, 30 Ohio St., 222.
    
      
      J. W. Taylor and T. J. Moffett, for defendants in error.
    We maintain, first, that the alleged appraisal agreement and award was a nullity as to all the defendants in error. Section 3643, Revised Statutes; Ins. Co. v. Leslie, 47 Ohio St., 409, 413; Ampleman v. Ins. Co., 559; Mo. App., 308; Baker v. Ins. Co., 57 Mo. App., 559; Reily v. Ins. Co., 43 Wis., 455; Seyk v. Ins. Co., 74 Wis., 67.
    There was no consideration moving to plaintiff below to enter into any such appraisal, as the jury found there was nothing to appraise or arbitrate. It seems to us that the broad rules as laid down by this court in Insurance Co. v. Leslie, supra, the leading case in this state, fully cover this question. Also a most instructive and able opinion is given upon this question in Insurance Co. v. Luce, 11 Ohio C. C. Rep., 476; 5 Circ. Dec., 210; Ins. Co. v. Port Clinton Fish Co., 14 Ohio C. C. Rep., 160; 7 Circ. Dec., 468.
    We claim the finding of the jury under an overwhelming weight of the evidence, as shown by the record, settled that question in the case at bar and established the fact that it was a total loss. The pretense of the counsel to the contrary has nothing to do with the case. These cases rest upon the same footing. The Missouri, Wisconsin, and Nebraska cases and our Ohio cases most ably and fully sustain our claim in the case at bar, and as far as we have been able to learn, there is no published case decided under a similar statute that does not sustain our position. On the contrary there is a long line of able and exhaustive decisions that do sustain us. Joyce on Insurance, Section 3241; Ger. Am. Ins. Co. v. Eddy, 36 Neb., 461; Ins. Co. v. Hull, 51 Ohio St., 270, 271.
    
      It is not necessary to first attack the appraisement. Ins. Co. v. Romeis, 15 C. C., 697; 8 Circ. Dec., 633.
    . The mortgagees’ claims absorb the whole judgment and still leave more than three-fourths of defendant Taylor’s claim unsatisfied. Therefore the plaintiff in error could not be prejudiced if its contention upon this question was right. The claims of mortgagees must still prevail and the result would be the same to the insurance company, and it could not have been prejudiced. See Ger. Ins. Co. v. Mirick, 38 W. L. B., 172, in which this court on February 5,1897, without report affirmed the circuit court in holding, although assured was barred from recovery it could not affect the right of mortgagees to recover, which they did. Harrington v. Ins. Co., 124 Mass., 126.
    If plaintiff below was barred from recovery it could not affect the rights of mortgagees; they contracted for this securicy and plead their contracts, there was no waiver on their part. The defendant insurance company was in default as to all pleadings of mortgagees in the court below. The judgment is overwhelmingly sustained by the evidence. The policy was written for their benefit, and their conceded claims absorb the whole fund. The mortgagees loaned their money upon the faith of their contracts with the insurance company and assured, and we submit that there is no valid reason why they are not entitled to the benefit of the judgment of the trial court.
    What is a total loss depends upon the conditions in each case. Phoenix Ins. Co. v. Clinton Fish Co., 14 C. C. Rep., 160; 7 Circ. Dec. 468; Joyce on Insurance, section 3029; Williams v. Ins. Co., 54 Cal., 440; Hanberg Ins. Co. v. Garlington, 66 Tex., 103; Harriman v. Ins. Co., 49 Wis., 71; Oshkosh Co. v. Ins. Co., 31 Federal Rep., 200; Rielly v. Ins. Co., 43 Wis., 456; 
      Underhill v. Ins. Co., 6 Cush. (Mass.), 440; Biddle on Ins., Vol. 2, sections 1376-1377; Ins. Co. v. Fogarty, 86 U. S. (19 Wall.), 640; Corbett v. Ins. Co., 85 Hume, 250.
    And it was in pursuance of the provisions of the policy that the insured, Drackett, and the insurance company, submitted the loss to the two appraisers selected by them. The provisions and stipulations as contained in this policy above referred to, are common to nearly all insurance policies, especially the “standard form.” Of such a provision for arbitration the Supreme Court of Pennsylvania has said: Assurance Co. v. Hocking, 115 Pa. St. Rep., 408; Yost v. Ins. Co., 179 Pa. St. Rep., 381; Hamilton v. Ins. Co., 137 U. S., 370; Read v. Ins. Co., 103 Ia., 307; Randall v. Ins. Co., 10 Mont., 340 (24 Am. St. Rep., 50); Home Ins. Co. v. Bean, 42 Neb., 537.
    Did the insured, Dracket, by entering into this appraisal agreement, thereby waive the benefits of the provisions of section 3643, Rev. Stat., inasmuch as the loss was total?
    We maintain that he did not. This section of the statute was under consideration by this court in Ins. Co. v. Leslie, 47 Ohio St., 409; Reilly v. Ins. Co., 43 Wis., 449; Santa Clara Academy v. Ins. Co., 98 Wis., 257; Haven v. Ins. Co., 123 Mo., 403; O’Keefe v. Ins. Co., 140 Mo., 558; Eddy v. Ins. Co., 36 Neb., 461.
    We maintain the facts as stated in the opinion in Seyk v. Ins. Co., 74 Wis., 67, are similar to the facts in the case at bar.
    It is true, that the court referred to Thompson v. fns. Go., but on an examination of that case we find that what was said in Reilly v. Ins. Co., supra, was adopted by the court in the opinion in Insurance Co. v. Thompson, without further consideration.
    
      Counsel cites 2 Biddle Ins., section 1376, as further evidence that the court in Seyk v. Ins. Co., supra, did not consider the question of the award. We fail to find anything in that section which would benefit plaintiff in error’s contention.
    Can any advantage be claimed by the insurance company because the pleadings did not ask to have, the award vacated? We maintain, the loss being total, under section 3643, Revised Statutes, such a claim was not necessary and would have- availed nothing.
    Here an award had been made, and the court was asked to set’it aside on the ground of fraud. Thompson v. Ins. Co., 45 Wis., 388; Am. & Eng. Enc. of Law, 2 Ed., Vol. 13, page 361.
    The award was in no event binding on this defendant in error as mortgagee.
    We maintain that the mortgagor, after making his policy payable to his mortgagee, can no more bind the mortgagee by an adjustment of the amount of the loss than he can bind him by a release of it. Jones on Mortgages, Vol. 1, section 409, page 321; Am. & Eng. Enc. of Law, 2nd Ed., Vol. 13, page 326; Hall v. Fire Assoc., 64 N. H., 405; Harrington v. Ins. Co., 124 Mass., 126; Brown v. Ins. Co., 5 R. I., 394; Insurance Co. v. Olcott, 97 Ill., 439; Georgia Home Ins. Co. v. Stein, 72 Miss., 943; Bergman v. Assurance Co., 92 Ky., 494; Hathaway v. Ins. Co., 134 N. Y., 409; in Hastings v. Ins. Co., 73 N. Y., 141.
    We contend that it has been well settled that a mortgagee to whom a loss is payable under a policy may commence an action directly against the insurance company. Palmer Sav. Bank v. Ins. Co., 166 Mass., 189; Winne v. Ins. Co., 91 N. Y., 185; Eddy, 
      
      Receiver, v. London Assur. Corporation, 143 N. Y., 311.
    The court did not err in giving certain requests to charge the jury.
    In our reply to propositions “A” and “(a)” and “(bl”, we will consider them together, inasmuch as they are so closely connected, and we first take up the question whether there was error in giving requests numbers four and seven. We maintain that the instructions complained of stated the law correctly and are sustained by the following authorities: May on Insurance, section 421a, and 1376; Wood on Fire Insurance, 2 Ed., Vol. 1, section 107, page 273. Joyce on Ins., Vol. 4, sections 3025 and 3029.
    Note the similar language given in the charge in Williams v. Hartford Ins. Co., 54 Cal., 442.
    We do not find any decision questioning the rule as laid down in this case except in the case of McIntyre v.Ins. Co., 90 Tex., page 178, which certainly does not overrule it.
    We have already called the court’s attention to the similarity between section 3643, Revised Statutes, and section 1943, Wise. Revised Statutes, therefore what has been said on the subject of a “total loss” or “wholly destroyed” by the Supreme Court of that state will throw considerable light on the subject. The first case is that of Harriman v. Queen Ins. Co., 49 Wis., 71.
    We claim nothing especial for this case because the facts seem to indicate that the building was burned down to the foundation, and that was injured so as not to be in suitable condition for use in a new building, and the court said the destruction within the meaning of the statute ivas total, but declined to lay down a rule- applicable to other cases. Oshkosh 
      
      Packing & Provision Co. v. Ins. Co., 31 Fed. Rep., 200; Seyk v. Ins. Co., 74 Wis., 67.
    While it was stated that there was no part of the building left standing of any value the decision that the destruction was total was placed on the ground that the identity of the living insured toas so fan- annihilated that it no longer existed as a building.
    
    The statute was again construed in Lindner v. Ins. Co., 93 Wis., 526.
    The ease of Seyk v. Ins. Co., supra, was referred to by the court as well as Wood on Fire Ins., section 107.
    In a still more recent case decided in 1898 the question of a total loss was considered in an able opinion. St. Clara Female Academy v. Northwestern Nat. Ins. Co., 98 Wis., 257.
    The state of Missouri also has a statute similar to our section 3643, and the courts of that state have several times been called upon to determine what is a total loss within the meaning of the statute; notably, in the cases of Nave v. Home Ins. Co., 37 Mo., 430; Barnard v. Ins. Co., 38 Mo. App., 106; Haven v. Fire Ins. Co., 123 Mo., 403; O’Keefe v. Ins. Co., 140 Mo., 558; Corbett v. Spring Garden Ins. Co., 155 N. Y., 389, which reversed the case in 85 Hun., 250, for the reason that the facts in that case did not warrant a finding of a total loss — the building having been restored for one-third of its original value, the court followed the general doctrine on the subject as to what is a total loss.
   Minshall, J.

The case presents two questions we shall notice: 1. In view of section 3643, Revised Statutes, was the plaintiff bound by the amount fixed by the arbitrators, whether there was a total loss or not? 2. What constitutes a total loss within the meaning of that section, and did the court err in instructing the jury in this particular?

1. We have no difficulty in answering the first question in the negative. The section referred to requires a company insuring any building or structure against fire, to cause such building or structure to be examined by an agent, who is required to make a full description of the building or structure and fix its insurable value; and then provides, that, in the absence of any change increasing the risk without its consent or any intentional fraud on the part of the insured, in case of a total loss, the whole amount stated in the policy on which it receives premiums shall be paid by the company; and in case of a partial loss the full amount of such loss shall be paid. Statutes similar in their provisions are common to many of the states of the Union; and it is generally agreed that they rest on grounds of public policy — the prevention of the mischief incident to over-insurance — and that the insured cannot be held to a waiver of them. Insurance Co. v. Leslie, 47 Ohio St., 409; Seyk v. Insurance Co., 74 Wis., 67; St. Clara Academy v. Insurance Co., 98 Wis., 257; Havens v. Insurance Co., 123 Mo., 403; White v. Insurance Co., 4 Dillon, 177; Insurance Co. v. Eddy, 36 Neb., 461; Reilly v. Insurance Co., 43 Wis., 449; 13 Am. & Eng. Ency. Law, 2d 361. It does not necessarily follow from this that where there is a partial loss, it may not be ascertained by arbitrators; and where there is a clause in the policy requiring arbitration, the parties may be required to conform to it. But where the insured insists that the loss is total, the agreement to arbitrate, or an arbitration had fixing the amount, will not preclude him from bringing a suit as for a total loss. And, in such case, if he establishes that there was a total one, he is entitled to recover the full amount of the policy, notwithstanding the award of the arbitrators was to the contrary, and fixed a less amount as the measure of the loss. But on the other hand, should he fail in establishing a total loss, the amount of his recovery will be limited to the amount of the award, where there was no fraud in obtaining it. The jury was so instructed in this case, and, consequently, there is no error in the charge in this regard.

2. This is the first case in this court presenting the question as to what is a total loss within the meaning, of the section above referred to. For while the subject of a total loss is discussed in Insurance Co. v. Sherlock, 25 Ohio St., 50, it was a case of marine insurance complicated with the question of a constructive loss, known to that kind of insurance. It has, however, received the consideration of the courts of other states, having statutes similar to our own, and whilst there is some difference in modes of expression, there seems to be no substantial difference of opinion. It seems to be agreed that it is not necessary to constitute a total loss, that all the material composing the building should be destroyed; it is sufficient, though some parts of it remain standing, that the building has lost its identity and specific character as a building, the insurance not being upon the material composing the building but upon the building as such. When the loss by fire is such that its character as a building is destroyed, and it remains simply as a mass of ruins, parts of which may remain standing, but of no value in repairing or rebuilding the structure, though something might be realized for the material by removing it, the loss is regarded as total. Thus in Joyce on Insurance, section 3025, it is said “In case of an insurance upon a building under a fire risk, tbe first principle is, that it is tbe building, and not the materials of which it is composed, that is covered, and therefore total loss does not mean necessarily an absolute extinction of every part and parcel of the property. In such risk there is a total destruction and loss when, by the peril of fire, the building becomes a mass of ruins and rubbish, and loses its specific character, and ceased to be a building, becomes unfit for use as such, without regard to the fact that even some parts may be left entire, or that a large portion of the building be left standing and not actually destroyed.” See also, Wood on Insurance, section 107; May on Insurance, section 421a. Williams v. Insurance Co., 54 Cal., 442; Seyk v. Insurance Co., 74 Wis., 67; Havens v. Insurance Co., 123 Mo., 403.

The general charge was quite liberal to the defendant, more so probably than it should have been. The court said to the jury: “There can be no total loss so long as a remnant of the structure standing, the stone foundation being disregarded, is reasonably adapted for use as a basis upon which to restore the building to substantially the condition in which it was before the injury by fire. And whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question before the injury, would in proceeding to restore the building to substantially its original condition, utilize such remnant as a basis for such reconstruction.”

But it is said this is not consistent with instructions 4 and 7 given at the request of the plaintiff. This may be and, as to the seventh, is probably so, but we regard these instructions as having been properly given. They are as follows:

4. A policy of insurance is upon the building as. such and not upon the materials of which it is composed. If you find that the identity and specific character of the insured building was entirely destroyed by fire, then you must find for the plaintiff.”

7. “Although you may find that after the fire a large portion of the four walls were left standing, and that certain parts of the building were left untouched by the fire, still if you find that the building has lost its identity and specific character, you may find that the building was totally destroyed.”

These charges state in a general form what seems to be the received law applicable to the case. The criticism is that the court should have defined what is. meant by “identity” and “specific character.” But taken in connection with the general charge, there could have been no misapprehension as to the meaning. The terms are not obscure and convey as well as words can, the idea to be expressed by them. A building loses its identity and specific character, when it has been so far destroyed by fire that it can no longer be called a building, and the portions that remain cannot be utilized to advantage in rebuilding-it. That something might be realized out of portions that remain, for other purposes, is not material.

As to what will constitute a total loss in a given case, must, within the meaning of the statute, necessarily be, to a «great extent, a question of fact for the jury to determine under proper instructions from the. court. What remaining parts could be made available in rebuiding can only be determined by exercising a sound discretion in the light of the evidence. Two courts with power to weigh the evidence have don© so, and sustained the verdict; and it can hardly be expected that this court, not required to weigh the evidence, will disturb the verdict, where the jury was properly instructed. Much of the evidence tends to show that the building was reduced to a mere wreck, and that nothing remained that could be utilized in rebuilding it.

We see no error in the admission of evidence. The mortgagees being directly interested and parties to the suit, had a right to show what the loss was. And as to the letters of Taylor, they simply tended to show that he had not consented to any waiver by submission to arbitration; and whether he had or not was immaterial.

Judgment affirmed.  