*729ON REHEARING.
West, J.,delivered the opinion of the court.
Statutes and ordinances of the character of this, in judgment, are harsh in their application and are to be liberally construed. This rule is so generally adopted that it may fairly be said to be universal. But in its application of necessity it assumes that there is something to be construed. Courts are not to construe legislative declarations that are so unambiguous as to need no construction. To do so would be to darken counsel.
“On the question of whether or not a notice in fact is sufficiently definite as to time, place, nature, etc., of the injury, the rule of liberal construction is generally adopted by the courts.” Chicago v. Gilbert, 59 Ind. App. 613, 108 N. E. 29.
It might.be that an accident described as having occurred in the Capitol Square could be shown to have occurred at the west entrance. An affidavit in some respects defective may be deemed sufficient. Melovich v. Tacoma, 135 Wash. 533, 238 Pacific 562. In this class of cases there is that room for eoñstruetion which courts avail themselves of when injustice is threatened. But construction can never supply the total absence of a necessary allegation. Had the notice wholly failed to state where the accident occurred that omission could not be so remedied. And so rules of construction relative to the several requirements of the statute are in the instant case of little moment, although they are to be considered in determining how the statute as a whole should be dealt with, since it is no procrustean bed on which to stretch unwary litigants. It is now held that incapacity to give the notice *730excuses entirely compliance therewith. Randolph v. City of Springfield (Mo. Sept. 1925), 275 S. W. 567; Terrell v. Washington, 158 N. C. 281, 73 S. E. 888.
The legislature has seen fit to declare that the notice shall be verified. We have nothing to with the wisdom of this declaration. The power to do so existed and has been exercised in terms so plain as' to make construction impossible. Such a requirement as a condition precedent is generally upheld. In Weisman v. City of New York, 219 N. Y. 184, 114 N. E. 1086, cited with approval in O'Neil v. City of Richmond, 141 Va. 168, 126 S. E. 56, it was said:
“In Cotriss v. Village of Medina [139 App. Div. 872, 124 N. Y. S. 507], supra, the plaintiff failed to comply with the requirement of a statute that verified claims for damages for personal injuries resulting from defective streets should be served. It was claimed that plaintiff’s failure to verify her notice did not result in any injury to the defendant, and, therefore, should be overlooked, but it was said in respect to this claim: ‘It may be that the omission to present the proper writing or statement to the board did not result in any damage to the defendant. That is not the test. The requirement is absolute, and the question of whether injury resulted from the failure to comply with the explicit mandate of the statute is not open to proof or inquiry. If so, these and similar provisions intended to safeguard municipalities against imposition of unjust claims would be nullified.’ ”
In White on Negligence of Municipal Corporations, section 687, it is said:
“Verification of notice. — -Many of the statutes require the notice to be verified by the oath of the claimant and a notice not so verified is considered in these jurisdictions the same as no notice.”
*731Nor is the reception of snch a notice any waiver of defects. In Forsyth v. City of Oswego, 191 N. Y. 441, 84 N. E. 392, 123 Am. St. Rep. 605, it was held to be error for the court to refuse to charge the jury “that the reception of the notice by the city officials, its subsequent reference to the claims committee, and the alleged hearing thereon, did not waive the irregularities contained in the said notice.” Weisman v. City of New York, supra; Winter v. City of Niagara Falls, 190 N. Y. 198, 123 Am. St. Rep. 540, 13 Ann. Cas. 486, 82 N. E. 1101. These cases hold, and properly, not only that the reception of the notice constitutes no waiver, but that an examination into the facts and even a hearing does not. They do, however, assume that action thereon would, the test being not did the city look into the merits of the ease but did it act.
The same distinction was observed in Blumrich v. Village of Highland Park, 131 Mich. 209, 91 N. W. 129. In the very recent case of Nevala v. City of Ironwood, 232 Mich. 316, 205 N. W. 93, a petition appears to have been referred to a committee which reported:
“We, your committee to whom was referred the claim of Mrs. Nevala for injuries sustained by her on Pine street, beg leave to report that we have given the same our consideration, and feel ourselves constrained to report the disallowance of the claim.”
There the court said:
“We hold that the notice, acted upon by the council by reference to a committee, with report by the committee and rejection of the claim, bars the city from now asserting want of notice. The council disallowed plaintiff’s claim. Had disallowance been made without any formal notice, such action would have waived notice, and the same result follows the action disallowing the claim, even though the notice upon which *732final official action was planted, was technically defective. The defendant is in no position to assert want of legal notice, for it assumed the right to and did disallow plaintiff’s claim upon the notice given. See Lindley v. City of Detroit, 131 Mich. 8, 90 N. W. 665, and cases there cited; Brown v. City of Owosso, 126 Mich. 91, 85 N. W. 256; Foster v. Village of Bellaire, 127 Mich. 13, 86 N. W. 383. *******
“The following cases, cited by counsel for defendant, do not apply: In Blumrich v. Village of Highland Park, 131 Mich. 209, 91 N. W. 129, the claim was presented orally to the council by the son of the plaintiff, and no official action taken by the council. Waiver in the case at bar rests upon action taken and not upon failure to act.”
Hunter v. Village of Durant, 137 Mich. 53, 100 N. W. 191, is a case in which the notice was not verified:
“When the notice was received, none of defendant’s officials objected to the lack of verification, and its common council appointed an investigation committee, empowered ‘to incur such expenses in such investigation of the injuries sustained by said Hunter as they may think'proper;’ and on the following day, November 29th, expert physicians employed by said committee subjected plaintiff to a very painful physical examination. We are bound to say that this constituted a waiver of the want of verification.”
In New York these things would probably have been held insufficient to show action on the motion. The apparent conflict of authority here is rather on what constitutes action than on its effect, the underlying principle being that it is to.o late to question the form of the notice after the notice itself has been passed upon.
Bowman v. Ogden City, 33 Utah 196, 93 Pac. 561, *733is also a ease in which there was an unverified notice, and the same conclusion was reached.
It is entirely true that this distinction is not always recognized. Dillon on Mun. Corp. (5th ed.) section 1613; Pender v. City of Salisbury, 160 N. C. 363, 76 S. E. 228.
There is nothing sacrosanct about these notices, faith and fair intent must prevail. Here a notice was given in all respects regular except that it was not verified. That notice was not merely received but it was. acted on after full investigation. Petitioner was told that the city was not liable, not because of want of verification, but because of contributory negligence. In other words the plaintiff Was told, no matter what may be the form of your petition you have no claim upon its merits and the city will pay you nothing. It would violate every principle of fair dealings for the city to say you may have had a ease, but with a red herring we have distracted your attention from a fatal technical omission in your notice. We have lulled you to sleep and now your day of grace has passed.
In Houseman v. Ins. Co., 78 W. Va. 203, 88 S. E. 1048, L. R. A. 1937A, 299, it was held that denial of liability on an insurance policy, based solely on an alleged want of unconditional ownership of the property destroyed, operates as a waiyer of a provision thereof, requiring proofs of the quantum of loss as a prerequisite to an action on the policy.
In Virginia Fire and Marine Ins. Co. v. Goode, 95 Va. 762, 30 S. E. 370, the court said:
“It is well established that a denial of all liability under the policy, without giving reasons, absolves the insured from any obligation to furnish preliminary *734proof of loss, or to correct defects in it if it has been furnished.” See also Robinson v. Shepherd, 137 Va. 687, 120 S. E. 265 (section 7 of syllabus).
A tender declined in advance is never necessary; equally futile would be the verification of a notice already rejected on the facts.
The power to waive notice or its formalities as an act of grace is not to be confused with waiver by way of estoppel after action has actually been taken.
It is earnestly insisted that the attorney for the city in no event was vested with any such .power. Under its charter he is at the head of the department of law. Among his duties is that of trying cases and in preparing them for trial. This notice has to be served on him and is for his benefit. It serves to aid him in making the necessary preparation and indeed in ascertaining whether a trial at all is wise. He has no power to bind the city to pay any particular claim, but he has power by acting finally upon a notice containing the required information to say whether a notice intended for him alone is sufficient. His statement to the plaintiff that the city relied upon the defense of contributory negligence was in substance a statement that the notice furnished was ample and gave the necessary data for proper investigation; that such investigation had been made, and that the claim was refused for the particular reason stated and for no other. The corporation counsel for the city of Richmond is no municipal mail box to receive notices' and hold them for others. He is the chief of his department and is clothed with all powers incident to the discharge of the duties that devolve upon him. Somebody had the right to say if this notice was sufficient and to act thereon. In the usual course of business this power was his and his only.
*735By way of recapitulation we hold:
1. That verification of the notice is a condition precedent.
2. The filing of an unverified notice does not comply with the statute and its receipt is no waiver of its defects, nor is an investigation based thereon.
3. But when it has been received and when full investigation is had thereon by the city attorney and when the claim has been rejected for some reason not connected with the form of notice or its contents, the notice has performed its function and defects therein can no longer be relied upon to prevent a recovery.
This case has been ably and elaborately presented, but it has not been possible within any reasonable limits to discuss the formidable lists of authorities presented, many of which, as Mr. White, in his recent work on Negligence of Municipal Corporations, at section 666, observes, do small credit to the'administration of justice. We are of opinion to adhere to the conclusions heretofore reached in our opinion handed down on October 1, 1925, and it is so ordered.
Reversed and remanded.
McLemore and Chiñn, JJ., dissenting.