Both parties appointed appraisers, and ■a time was set for their meeting. Plaintiff’s appraiser attended, and waited a reasonable time. When defendant’s appraiser appeared, later in the day, it is conceded by all parties that he did nothing towards appointing a future meeting; and one witness testifies that, when his attention was called to that matter, he said “his time was too precious.” He made an estimate of loss in company with plaintiff, and made an agreement to settle, which defendant repudiated. On these facts, the circuit judge left it to the jury to say whether defendant had waived its right to a joint appraisal. The jury found such a waiver, we think correctly.
We think the jury were right in finding the company waived their right to replace the goods. More than six weeks elapsed after the notice of loss before plaintiff disposed of the goods. Plaintiff could not be held to wait indefinitely for defendant to replace, or give notice of an intention to do so.
An objection is now urged to the admission of the proofs of loss.
They were produced by the company upon notice, and defendant’s ■counsel insisted that, having thus procured and examined them, *218plaintiff was bound to put them in evidence. Plaintiff consented, and the court ordered them in evidence. Later, defendant claimed the admission was error. If so, it was not one of which defendant could complain. No motion was made to strike out the proofs. Moreover, an examination of the record shows that the only use made of the proofs was a memorandum by which to refresh the memory of the witnesses by whom the proofs were prepared, for which purpose they were competent. Howard v. McDonough, 77 N. Y. 592. The amount of the verdict is no greater than warranted by the evidence.