ON MOTION BOB EEHEAEING-.
Smith, P. J.— The fact that this action arose under, and is governed by, the provisions of section 5987, Revised Statutes, 1889, instead of those of section 6009 of the revision of 1879, was, through inadvertence, overlooked by us in' the consideration of the questions which were presented for decision. The former provides that in suits on fire insurance policies an insurance company shall not be permitted to deny that the property insured thereby was worth, at the time of the issuing of the policy, the full amount insured therein *565on the property; and in case of total loss “the measure of damages shall be the amount for which the same was insured, less whatever depreciation in value below the amount for which the property -is insured, the property may have sustained between the time of issuing the policy and the time of the loss.” In case of total loss under this section the amount of the insurance written in the policy shall be taken conclusively to be the true value of the property when insured. The two sections, in effect, would be the same were it not for the exception engrafted on the former which we have just quoted. When the insurance company does not show the depreciation provided m the exception, the amount of the insurance written in the policy will be taken conclusively to be the true value of the property when insured, and the measure of damages for the loss sustained as was the case under the latter section.
The only question which could have been submitted to a jury or to the arbitrators under the pleadings, was whether there was any depreciation of the property when tested by the rule embraced within the exception. This was the only matter which was properly the subject of arbitration.
It appears, however, that the arbitrators adopted a rule for the admeasurement of tohe damages other than that of the statute, for their report shows that they took “into consideration the age, condition and location of the premises previous to the fire.” This is the very thing the statute impliedly forbids. They acted in plain contravention of the statutory rule. Upon its very face the award was nothing. It bound no one; and whether one section or the other of the statute applied the result is the same.