It is well settled that, although the by-laws of a mutual fire insurance company provide that in case of loss the assured shall furnish certain preliminary proofs to the officers to entitle him to recover for the loss, yet the officers may in any particular case waive this stipulation ; that such waiver may be either express or by implication; and that it may be implied from the fact that in refusing to pay the loss they neglect to state their objections to the preliminary proofs, and place then refusal on other grounds. Underhill v. Agawam, Ins. Co. 6 Cush. 440.
A waiver of this sort is unlike a waiver of such provisions of the by-laws as relate to the substance of the contract. The officers have no power to dispense with these. Hale v. Mechanics' Ins. Co. 6 Gray, 169. Brewer v. Chelsea Ins. Co. 14 Gray, 203. In the latter case the distinction between these two classes of by-laws is pointed out. It is said that stipulations as to the preliminary proofs do not touch the substance or essence of the contract; but relate only to the form or mode in which the liability of the company shall be ascertained and proved. Besides; such preliminary proof must necessarily be submitted to the *605officers of the corporation, who must pass on its sufficiency and it therefore comes within the scope of their authority to say whether proof of the loss is sufficient. It may be added that in ascertaining and settling losses they frequently act upon personal investigations by themselves or their agents, and thus obtain knowledge that renders the preliminary proofs wholly immaterial.
In this case there was evidence tending to show not only an implied, but an express, waiver of the preliminary proofs ; and the court are of opinion that it should have been submitted to the jury, and was sufficient to have authorized them to find for the plaintiffs on that point. The verdict should be set aside, and a new trial granted.