The opinion of the court was delivered
by Knox, J.In the policy, of insurance upon which this action was brought it is expressly stipulated, “that in all cases of other insurances upon the property insured, whether prior or subsequent to the date of this policy, in case of loss or damage by fire, the insured shall not be entitled to demand and recover on this policy a greater proportion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on the said property.” Further, “that the aggregate amount -insured in this and other companies on the above-méntioned property shall not exceed two-thirds of the estimated cash value.”
The estimated cash value mentioned in the policy was five hundred.dollars. The amount of the insurance was three hundred thirty-three dollars — two-thirds of the estimated value, so that any further insurance, being in violation of the agreement, would render nugatory the policy. It is said, however, that the company had notice of the additional insurance, and elected not to avoid the policy, but treated it as- in full force by continuing thereafter to make and collect assessments upon it. This branch of the charge is entirely unobjectionable. The question was fairly submitted to the jury, and found against the company. But there was error in permitting the jury to find under the evidence that the company was liable for the whole amount insured in the policy. The implied waiver arising from the assessments, and from what was said by the agent, would apply only to that part of the contract which declared that only two-thirds of the estimated value should be insured, leaving in full force the stipulation that in the event of other insurances only a proportionate part of the amount insured should be demanded' from the Lycoming Company.
Now, as there was no evidence given that the loss sustained was greater than the estimated value of the property, w;hich was five hundred dollars, the plaintiff was only entitled to recover upon the policy in suit that proportion of the said sum of five hundred dollars which the amount insured in the policy, viz., three hundred and thirty-three dollars, bore to the whole amount insured on the property, viz., six hundred and thirty-three dollars. The amount would be ascertained thus: If $633 give $500, what would $333 give? The answer is $263 03. After the fact was found by the jury that the company assented to the additional insurance, the verdict should *209have been for $263 03. And as we have discovered no other error in this case, we will affirm the judgment if the plaintiff will release the excess, otherwise it must be reversed.
Judgment reversed, and a venire de novo awarded, unless the plaintiff, within thirty days after receiving notice hereof, files a release for all of the judgment but $263 03 and interest from the rendition of the verdict, in which case judgment is to be entered, affirmed for said amount with costs.