(concurring specially). I concur in the reversal of the *430judgment. After the respective hail storms of August 19 and 21, 1918, two notices of loss were sent to the defendant. These notices were typewritten, signed by the plaintiff, upon stationery of the defendant’s agent, and as the testimony sufficiently shows were sent to the defendant by its agent, the cashier of the bank at Regan. It does not appear in the evidence that these notices were sent by registered letter as required in the by-laws. After an adjuster of the defendant had visited the farm and made an offer of adjustment to the plaintiffs, which was refused, one of the plaintiffs testified that he requested this banker agent of the defendant to again send notice to the company; that this banker agent told him that he did send such notice. The reception of any notice for readjustment, by mail or otherwise, was denied by the defendant.
The by-law involved provides that when an adjustment is objected to by the insured, he shall immediately notify the secretary by registered letter calling for readjustment, and this readjustment shall bo final, subject only to review and change by the board of directors. Later, the attorney for the plaintiffs notified the defendant that he had for collection loss under the policy upon which a 100 per cent loss was claimed, and stated that he was writing to the defendant in the hope that it might desire to pay such loss before any action was started. In response to this letter the defendant explained the situation to the attorney, and advised him that they would send another man to see if he could effect an adjustment. A second adjuster was sent out, but the record does not disclose what efforts, if any, were made toward another adjustment. The question was submitted to the jury as to whether the defendant received this notice asking for a readjustment.
It accordingly sufficiently appears in the evidence that the defendant received the first two notices, not by registered letter so far as the record discloses; without objection; that it acted upon such notices and sent an adjuster. That the adjustment proposed by its adjuster was refused by the plaintiff. The jury, through its findings, determined that a second notice for readjustment was sent to the defendant. It further appears, without dispute, that after the defendants were notified by plaintiffs’ attorney it did send another adjuster. The record does not disclose that any adjustment was made or tendered by the defendant through this second adjuster.
*431I am of the opinion that the defendant waived the requirement of the by-laws that these notices must be sent by registered letter through recognition of the first notices and the manner in which the same were permitted to be sent through its agent, the banker, and that it is not in a position to require strict compliance with its by-laws for another adjustment or review thereof by the directors, not having tendered or made a readjustment after notice thereof was given. See Schultz v. Des Moines Mut. Hail & Cyclone Ins. Asso. 35 S. D. 627, 153 N. W. 884, Ann. Cas. 1917D, 78; Stockwell v. German Mut. Ins. Asso. 37 S. D. 348, 158 N. W. 450; see note in 15 L.R.A. (N.S.) 1075.
4 Cooley, Briefs on Ins. 36, 58-60. The provisions of the by-law cited do not serve, by its terms, to oust the jurisdiction of the courts. It operates as a condition precedent for the adjustment of claims between the parties. There is no provision in the by-laws inhibiting final resort to the courts. 4 Cooley, Briefs on Ins. 3680, 3681; note in 15 L.R.A.(N.S.) 1056.
Ci-iristianson, J., concurs.