This suit was brought by appellee to recover the value of property insured by appellant, which was destroyed by fire. The jury found for appellee and returned a verdict assessing his damages at $1,000. The court entered judgment for appellee on the verdict, to reverse which appellant took this appeal.
We think the evidence justified the jury in finding plaintiff below had an insurable interest in the property insured, and that the loss was not over-estimated by them. The point made by appellant, that in the answer to questions contained in the written application, appellee untruthfully stated he was the owner in fee. and no other person was in tere ted in the property insured or the real estate on which the same was situated, and hence there was a breach of warranty as to title which would avoid the policy, is not tenable under the evidence, which shows all the written parts of the application for insurance were filled in by the agent of appellant, who was at the time fully informed of the true character of appellee’s title and interest in the property insured, and the real estate on which the same stood. The agent, with this information, chose to describe the title of appellee as “ fee simple.” Notice to the agent was notice to the company, and it is bound by his acts, no fraudulent collusion between the agent and insured appearing. Where the agent makes out an application for insurance with knowledge of the facts, the conrpany will be bound. Rockford Ins. Co. v. Nelson, 65 Ill. 415; Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill. 463; Andes Ins. Co. v. Fish, 71 Ill. 623; Lycoming Ins. Co. v. Jackson, 83 Ill. 302; Union Ins. Co. v. Chipp, 93 Ill. 96.
The first instruction given on behalf of plaintiff is erroneous. It calls for a finding for plaintiff upon a state of fact not sufficient in and of itself to justify such finding. But the fatal error appearing, which necessitates the reversal of this judgment, is that no proof of loss is shown to have been made by the assured, as required by the terms of the policy, and no waiver of the performance of this condition by the company appears. The declaration avers the material fact that the proof of loss was so made by appellee, and the general issue pleaded to the declaration traverses this material averment. It is nowhere shown by the record that appellant refused to pay the loss for some other reason than the failure of appellant to make proof thereof, as required by the terms of the policy, and thereby waived the making of such proof, or that the defense was limited to some other ground; but, under the general issue, appellant lias the right to require all the material averments in the declaration to be proven before a verdict against it can be sustained, and a judgment thereon affirmed.
The duty to make out and deliver proof of loss must be performed unless waived. Winnesheik Ins. Co. v. Schueller, 60 Ill. 462. Even where proof of loss was not furnished the insurer in a reasonable time, such delay was held sufficient to bar the action. Scammon v. Germania Ins. Co., 101 Ill. 621. Appellant has also cited cases in his brief where courts of last resort in other States hold the rule in regard to proof of loss to be as in this opinion announced.
For the errors mentioned, the judgment of the Circuit Court is reversed and the cause remanded.
Reversed and remanded.