delivered the opinion of the court.
This case is before us upon a writ of error to a judgment of the Circuit court of the city of Eichmond. The suit was instituted on a policy of insurance issued by the appellants on the 16th Hovember, 1866, by which the appellees were insured to the amount of $3,000 against loss by fire. The building containing the goods insured was destroyed by accidental fire on the 31st March, 1867, which totally consumed a large portion of the goods, together with all the books and papers of the insured.
The only question we are called upon to determine, is whether it was error in the court below to give to the jury the instructions moved by the plaintiff’s counsel.
It seems that both the plaintiff and defendant moved the court for instructions; and both sets of instructions were given in the form in ivhich they were respectively presented. The court first gave the following instructions, which were moved by the defendant’s counsel:
1st. That it was the duty of the plaintiff, within a reasonable'‘time, to give to the defendant nbtice''of' his loss and damage; and as soon thereafter as possible to
2d. That it was the duty of the plaintiff, when required by the defendants, to produce to the defendants certified copies of all bills and invoices, the originals of which have been lost, and exhibit the same for examination; and unless the jury shall be satisfied from the evidence that the plaintiff has complied, as fully as it was in his power to do, with the provision of the policy, he is not entitled to recover in this action.”
• To these instructions the plaintiff objected; hut they were given by the court; and then the plaintiff moved the court to give the following:
1st. “If, from the evidence, the jury shall believe that the plaintiff has fairly and reasonably complied with the terms of the policy of insurance, he is entitled to recover of the defendants a sum sufficient to cover the loss which he actually sustained by the fire; provided it does not exceed the sum of $3,000, the amount expressed in the policy of insurance.”
“ 2. If the jury shall believe that the plaintiff was insured in the company of the defendants by policy Ho. 136 (see policy copied on pages 21 to 29, inclusive, of the record), and that afterwards, on the night of
“ 3. The court instructs the jury that it is the duty of the defendants to prove evil practice or fraud on the part of the plaintiff, if they rely upon the same as a defence.
“4. If the jury shall believe, from the evidence, that In making his claim against the defendant, the plaintiff committed, wilfully, any fraud or false swearing, for the purpose of enabling him to recover of the defendant more than he was justly entitled to under his policy, upon the facts as they really occurred, then he is not entitled to recover.”
These two instructions, so far from being inconsistent, are substantially and in effect the same, and intend to assert, and do in effect assert, this proposition of law: That compliance with the requirements of the policy (which is the contract of the parties) is necessary; but that a literal compliance is not necessary, where a substantial■ compliance has been shown. This proposition is not contested by the defendant, but is affirmed by them in the first instruction given by the court at their instance. It is certainly true, that all that can be required in such a case is (as in any other contract) a reasonable and substantial compliance with the conditions of the policy. Angel on Insurance, § 229; Turley v. North Amer. Fire Ins. Co., 25 Wend. R. 374 ; 2 Philips on Ins. § 1865; 2d Kern. R. 81.
As to the second instruction asked for by the plaintiff, it is earnestly insisted by the learned counsel for the defendant, that the court below was in error: 1st, because the facts upon which it was hypothecated were not proved, but assumed by the court; and, 2d, because the court undertook to decide a question of fact, while it referred a question of law to the jury.
It is evident that this construction points to that portion of the evidence which is set forth in the re
- The fire occurred on the 31st March, 1867. On the 9th day of April, 1867, preliminary proofs, as they are called, were furnished to the defendant, in the shape of a notice signed by P. M. Colinsky, agent and attorney in fact of Meyer Cohen, and verified by him, together with a certificate of a justice of the peace of the city of Richmond. The notice and certificate are as follows :
“ To the Home Insurance Co., New Haven, Conn.:
“ I hereby give you notice, as heretofore your agent has been notified, that on the night of the 31st March last, between the hours of two and three o’clock, my store, in the wooden building hTo. 1715, on the south side of Main street, between 17th and 18th streets, in the city of Richmond, was fired accidentally or otherwise, by means wholly unknown to me, and in which I had nó manner of participation, directly or indirectly, and my stock of dry goods, insured by you to the amount of $3,000, by policy Ro. 136, and by the "Washington Tire Insurance Co., of Baltimore, to the amount of $2,000, was entirely consumed in part, and in part so much burnt as to be of no value whatever. The stock was composed of a general variety of dry goods suitable for this market, and was worth, at the time of the fire, in cash value, at least seven thousand five hundred dollars. A more minute description or account T cannot give, because my books and papers were consumed by the fire. And I demand of you three thousand dollars, the amount insured by you.
“ Signed Meyer Cohen, by P. M. Colinsky, agent, and attorney in fact.”
The certificate of the justice, sent with the above-notice, was in these words :
Page 321“ I, Augustus Bodeker, a justice of the peace for the city of Richmond, do hereby certify, that I am well acquainted with the character and standing of M. Cohen and P. M. Colinsky, his agent and attorney in fact, in this community, and reside not far from the store lately occupied by him on Main street; that I have enquired into the circumstances attending the late fire in his store, and believe that he has by misfortune, and without fraud or evil practice on his part, sustained loss to the amount claimed by him.
Given under my hand this 9th day of April, 1867.
Signed, A. Bodeker, J. P.”
These preliminary proofs were submitted to the agents of the Home Insurance Co. by the counsel for Cohen, accompanied by a letter, explaining that Cohen was, at the time of the fire, and still was, detained in New York by illness; and that, therefore, his application was of necessity verified by his agent and attorney in fact, Mr. Colinsky. To this letter the agents of the Home Insurance Company reply, that they are instructed to refuse to receive any papers furnished by the reputed agent of Cohen, or to acknowledge any liability under the same; and that the company demand proofs in due form, with copies of bills of goods purchased or other authentic evidence of the amount of goods on hand.
A long correspondence follows, in which the attorney of Cohen insists that he has furnished all the preliminary proofs required by the policy, and that it is impossible to furnish copies of bills of goods purchased, or any more minute specification, because of the fact that all the books and papers of Cohen had been destroyed by the same fire which consumed his goods. On the other hand, the agents of the defendants, in their letter, insist that the proofs must be furnished by Cohen himself.
There is a letter in the record which was given in evidence to the jury, but not alluded to by the counsel in the argument, which furnishes a key to this correspondence, otherwise vague and indefinite. It is a letter written by Cohen to the agents of the Home Insurance Company in Richmond, he then being in New York, dated April 3rd, 1867, in which he informs the agents at Richmond that he had revoked the power of attorney he had given Colinsky, as his agent, to manage his business at Richmond. This letter was, no doubt, received by Alfriend & Son, the agents of the Home Insurance Company, before the application was received from Colinsky, the agent of Cohen, which bears date April 7th, 1867. This accounts for the agents of the Home Insurance Company protesting, from the beginning of the correspondence with the attorney of Cohen, that he would not receive the papers furnished by the reputed agent of Cohen; and insisting to the end, that he must have the preliminary proof, furnished by Cohen himself. The prominent idea in the mind of the agents who conducted this correspondence, as shown by the letter referred to, was, that inasmuch
"W"e think the plain meaning and scope of the 2nd •instruction was simply this: That after having furnished the preliminary proofs in the shape of the specification of loss verified by the oath of the plaintiff and the certificate of the justice, if, when called upon by the plaintiff to state whether ány farther proof was required, the defendants failed to make any requirement for farther proof, or to make any objection to the sufficiency of the proof, then they must be- regarded as having waived their right to demand a more particular •specification of their loss.
"We think when this instruction is taken in connec
Good faith and fair dealing is of the very essence of the contract of insurance; and where the company puts its refusal to pay upon the ground of a defect in the preliminary proofs, they ought to point out what the defect is—what is necessary to be supplied so as to give the insured the opportunity to supply what is required. Failure to do this, or their silence when called upon, will be held to be a waiver of such defect in the preliminary proofs. Angel oh Insurance, § 245; Ætna Fire Ins. Co. v. Tyler, 16 Wend. R. 385; Burnstead v. The Dividend Mutual Ins. Co., 2 Kern. R. 81; Turley v. North Amer. Fire Ins. Co., 25 Wend. R. 374; Id. 379. And so as in the case before us, where the Company has the right, by the express terms of the policy, to call for the production of copies of bills, invoices, &c., where the originals have been lost, before a person to be named by them, and they fail to name such person, the Company will be held to have waived their right to require their production ás a part of their preliminary proof.
"We are therefore of opinion that there was no error in the court saying that a given state of facts, set forth in the instructions, if found by the jury to be true, constituted a waiver. It is for the jury to find the facts, but what state of facts constitutes a waiver is a question of law for the court.
Another objection to the second instruction given at the instance of the plaintiff, urged by the counsel for the appellant, is, that it submits to the jury a question
As to the third and fourth instructions, we thinlc they are substantially correct, and we are of opinion,, upon the whole case, that the judgment of the Circuit-court of the city of Richmond should be affirmed.
Judgment affirmed.