dissenting:
I cannot agree with the opinion of the court reversing the judgment in this case. The learned court below decided against the plaintiff, relying on Seibel v. Lebanon Mutual Insurance Co., 197 Pa. 106, which was an action on a policy issued on the same property. It is claimed that the facts distinguished *161that case from the present one. I am unable to see that the facts in the two cases, as to the production of books of account, bills, etc., differ sufficiently to bring the present case under a different rule of law than was applied so pointedly in the former one.
In the present case, the plaintiff alleging that his store, goods, etc., were destroyed by fire, forwarded proofs of loss to the insurance company, defendant. On June' 4, 1898, his attorney received written notice from the adjuster of the company that the papers received by it purporting to be proofs of loss were not satisfactory to the company and would not be accepted by it as complying with the conditions of the contract. The letter also contained the following : “We demand in accordance with said policy (see lines 83 to 85, both inclusive), that you shall produce for our examination all books of account, bills, invoices, and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.”
No reply was made to this notice and demand, and soon thereafter this suit was brought.
The excuse set up by the plaintiff for not complying with his request is twofold: 1. His books, etc., referred to in the notice were destroyed by fire, and 2. That he did not procure any copies nor endeavor to do so, because the company in said letter failed to name a place for the production of the same. It seems to me clear that it was the duty of the plaintiff to reply to the letter of June 4,1898, informing the company of the loss of his books of account, bills, invoices, etc., and offering to procure such copies as he could get, and asking the company to designate a time and place for their production. This provision in the contract of insurance is a reasonable one and it is intended to protect the company from fraudulent claims, and I do not think that it can be avoided by such a sharp technicality as the plaintiff resorted to in this case.
If the company had named a place and time for the production of the books of account, bills, invoices, etc., in the letter of June 4, 1898, or at any time thereafter prior to the commencement of the suit, it would probably have amounted to nothing because the plaintiff admitted at the trial that he made no effort to procure certified copies and in fact did not procure *162any prior to bringing suit. In my opinion the facts proved at the trial did not excuse the plaintiff from making an honest effort to comply with the demand contained in the letter of June 4,1898, from the company. And, therefore, under the doctrine of Seibel v. Lebanon Insurance Company, supra, he could not recover, and I would affirm the judgment of the court below.