One contention advanced for the rehearing relates to the burden of proof concerning performance of the stipulations in the policies that the insured must make all reasonable exertions to save and protect the property when threatened by fire, on pain of voidance of the policies. This is now, for the first time, represented to be a condition subsequent, the breach of which can be established only if the defendants assume the burden of proof. The plaintiff, on this theory, urges that Mrs. Gove's statement could be disbelieved by the jury, leaving no evidence that the policies were avoided, so that the defendants could not sustain the burden of proof. The only authority cited by the plaintiff to sustain his point of law is 3 Williston, Contracts (Rev. ed.), s. 667a, to the effect that such a stipulation *Page 27 as we are considering is a condition subsequent for purposes of pleading and proof, though for every other purpose it is a condition precedent. Thus, fraud must be pleaded by the defendants and the burden of proving it is on them. That appears to be the law in many southern and western states whose treatment of insurance policies differs markedly from ours, but it is not the law here. The burden was not on the defendants to establish breach of the conditions. After evidence was introduced tending to show the breach, the burden of persuasion was on the plaintiff to show that there was no breach. Trepanier v. Company, 88 N.H. 118, 121; Lamb v. Company,88 N.H. 306, 307; Malloy v. Head, 90 N.H. 58, 60.
The statement in the original opinion that Mrs. Gove's admission could not be disbelieved is not to be understood as meaning that a post-assignment declaration by an assignor is binding as a matter of on the assignee, or that it is admissible in the face of objection, even though it is relevant (as Mrs. Gove's was) to material facts. 4 Wig. Ev. (3d ed.), ss. 1085, 1059. But Mrs. Gove's declaration went to the jury without objection. Except for its denial of arson by her, it was not self-serving, but the opposite. The part upon which the original opinion relied was not self-serving, and it had internal credibility. Moreover, it was sustained in great measure by Mrs. Whitehouse's testimony. The only substantial conflict between the stories of the two women related to whether the one or the other added fuel to the chimney fire. They agreed perfectly that the fire door was open and that the fire in the chimney was not serious. Mrs. Gove's failure to do anything to put out the fire or close the fire door is undisputed. On all of the evidence, the jury must find either (1) that Mrs. Gove actively caused the fire to communicate to the building, or (2) that she did nothing when she saw Mrs. Whitehouse do so, or (3) at least that she failed to put out the chimney fire when she could, or even to close the fire door in order to avoid the spread of the fire. The plaintiff now asserts that the jury could believe that the fire in the chimney was excessively hot and that it communicated to the building without the `active or passive intervention of anybody. To do that, they must discredit all the testimony of the only eyewitnesses, and substitute wishful thinking and pure guess for evidence. The plaintiff cannot escape his dilemma in that way.
Finally, the plaintiff contends now, for the first time, that the defendants admitted liability because their adjuster agreed with Mrs. Gove and Manter as to the amount of the loss, and drew their checks *Page 28 for the amount agreed upon. If the adjuster, as seems possible, had authority to admit the amount of the damages, it does not appear that any agents of the defendants who drew the checks, or who ordered them drawn, had at the time any notice of the defense based on Mrs. Gove's later admission, or had any authority whatever to admit liability. Under the circumstances, the jury would not be warranted in finding that there was an admission of liability.
Motion denied.
BRANCH, J., did not sit: the others concurred.