[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 490
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 491 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 494 But three of the many issues raised by the pleadings were contested at Circuit: (1) Did the defendant unreasonably, and in bad faith, refuse to agree on an impartial person to act as umpire? (2) Is the defendant estopped by its conduct from asserting as a defense the fact that plaintiff failed to serve proofs of loss within sixty days? (3) The value of the property destroyed. The only questions argued in this court arise on the first and second of these issues, and are presented by the motion for a nonsuit made at the close of the plaintiff's evidence, renewed at the close of the evidence, by a motion to direct a verdict for the defendant, and by the exceptions to the charge and refusals to charge. The original agreement naming the appraisers was drafted by the general agent of the defendant, was signed by him in behalf of the company, and by the plaintiff, on the 21st of October, 1887, and was delivered to the defendant's agent and taken away by him. December thirtieth, Langworthy produced the appraisal contract at Medina, erased Headley's name, and inserted Nixon's in its place. On this occasion Langworthy named three persons, any one of whom he would accept as umpire, all of whom were unknown to the plaintiff and Nixon, and they were unwilling to accept of either. Nixon selected several persons whom he was willing to accept, but the two appraisers separated without agreeing upon an umpire, and they never reached an agreement. Langworthy would not accept of any *Page 495 person selected by Nixon, and Nixon would not of either of the three suggested by Langworthy. On the trial, considerable evidence was given tending to show that the persons selected by Langworthy had been frequently employed by insurers as appraisers and umpires, and it was insisted that the defendant, through its appraiser, Langworthy, refused to agree upon "a disinterested umpire." If this was true, the fact that an appraisal had not been made was not a defense to the action. (Uhrig v.Williamsburgh City Fire Ins. Co., 101 N.Y. 362.) This question of fact was submitted to the jury under conservative instructions, and was found for the plaintiff. It cannot be said that there is no evidence in the record which tends to sustain this branch of the verdict. There was no error in the refusal of the court to charge in substance that the defendant was not bound by whatever Langworthy did, or failed to do, in respect to the selection of an umpire. Langworthy was the nominee of the defendant, and he owed a duty to select an umpire, and if he improperly neglected this duty, the consequences cannot be charged to the plaintiff. Under the evidence the court was not required to charge that Langworthy did not represent the defendant in the conduct of the appraisal.
Among other provisions contained in the policy, is a clause that the assured shall furnish proofs of loss to the insurer within sixty days after the fire, as is provided in lines 67 to 80 inclusive in the "Standard Fire Insurance Policy of the State of New York."
It is also prescribed by the Standard Policy: "This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required;" and it is now insisted that the defendant, not having waived in *Page 496 writing the performance of the stipulation, that proofs of loss should be furnished in sixty days, that no recovery can be had on the policy. A party to a contract, containing a provision that it shall not be modified or changed except by a writing signed by him, may by conduct estop himself from enforcing the provision against a party who has acted in reliance upon the conduct, and so the acts of an agent, who possesses the power of the principal, or who has been held out by the principal to possess his power, in respect to the provision alleged to have been altered or changed, may also estop his principal. (Messelback v. Norman, 122 N.Y. 578; Underwood v. Farmers' Joint StockIns. Co., 57 N.Y. 500.) December 30, 1887, more than seventy days after the fire, the parties entered into a contract in writing to submit the question of the amount of the loss to appraisement, which was a waiver of the provision in the policy, that proofs of loss must be furnished within sixty days. The evidence warrants the inference that this contract to submit the amount of loss to appraisers was continually in the hands of defendant, from the date October twenty-first, when first executed, until the time of the trial, and that the negotiations were not unknown to it. In addition, the plaintiff and his wife testified without objection that when the general agent and appraiser of the defendant called to settle the loss and executed the appraisal agreement, he said that proofs of loss need not be furnished, as the damages would be soon appraised and settled. This was denied by the general agent. The plaintiff also testified without objection that defendant's local agent, who issued the policy, also told him after the fire that it would be unnecessary to furnish proofs of loss. This the local agent denied, but these issues were submitted to the jury and found for the plaintiff. Under such circumstances the question whether the defendant had waived the presentation of proofs of loss was properly submitted to the jury as a question of fact.
It may be remarked in passing that no defense on the merits was presented to the jury, the payment of the policy being resisted solely on the grounds that an appraisement had not *Page 497 been had, and formal proofs of loss had not been served within the time limited by the policy.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.