APPLICATION FOR REHEARING
No 1656.
Decided Feb 24, 1941
BY THE COURT:The above entitled cause is now being determined on defendant-appellee’s application for rehearing.
This application apparently is based on the fact that in our original opinion we went beyond the claimed errors set out in appellant’s assignment and discussed at length the question of conditions precedent necessarily involved in plaintiff’s cause of action.
Ordinarily our observations on review are limited to the errors complained of, but not infrequently, as in the instant ease, counsel for appellee raise the question that the judgment is correct even if it should be determined that the court erred in the particulars set out in the assignments.
This is exactly what happened in the instant case.
*564Counsel urge not only that the action oí the trial court in directing a verdict was warranted under the reasoning given, but in addition was necessarily correct on che further question that plaintiff had not presented evidence showing compliance of certain essential conditions precedent.
When we arrived at the conclusion that the trial court was wrong in his reasoning for directing a verdict, it then became necessary to inquire whether or not the action of the court was correct on any other reasoning disclosed through the record, and necessarily required a determination of the probative force of all evidence on this question.
There is nothing new about this procedure; in fact, we always follow it.
The reason for our commenting on this question of conditions precedent was due to the fact that it was not as well defined as it should have been.
In fact, I think we would be warranted in scolding counsel for appellant a little in not having his record so cleancut on the performance of conditions precedent as would have eliminated all question.
By this we mean that an experienced counsel should know the importance of performance of conditions precedent, and when he has a claim of this character should carefully read his policy and perform every condition 100 per cent and to the letter.
Such care m the start will very frequently avoid law suits thereafter. We are frank to say that the saving of plaintiff’s case on this question of performance of conditions precedent will be due more to good fortune than well formulated design.
The first two letters sent by the attorney to-the Cleveland office possibly were not intended in any sense as an attempted notice under the policy. They did nothing more than advise that there were apparent discrepancies. The letter of August written to the New York office is presumably the one intended as a compliance. We so deduce from the fact that the letter so states. The subsequent proof of loss and affidavit with report of account comes within the three months’ period designated on the policy.
The application for rehearing will be denied.
GEIGER, PJ., BARNES & HORNBECK, JJ., concur.