1. INSURance:waiyer. of preliminary §ence: 6vi' I. If nothing but the notice of loss had been delivered to Bennett, and he had been asked if it was sufficient, and in reply he said that it was, that could not be considered as a waiver of preliminary proof. Desilver v. State Mut. Ins. Co., 38 Penn. St., 130. Bennett, in such ease, might well have supposed that the plaintiff intended to deliver some other paper as preliminary proof, andmnly claimed for the paper delivered that it was a notice of loss. But something besides the notice was delivered, and that something was evidently. *647enough an attempt, however feeble, to make preliminary proof. Now, if Bennett was asked, as Akers says he was, if anything further was required, and he said there was not, we think that constituted a waiver of preliminary proof so far as Bennett had power to bind the company in that respect. It is contended, however, that we must take the plaintiff’s testimony alone as to what was said, and throw out Akers’, and that, taking his alone, it would appear that he inquired only if the notice was sufficient. The plaintiff appears upon his examination and cross-examination to have been considerably confused. It is by no means certain that he had any definite idea of the difference between notice and preliminary proof, or of what was required in the matter. If so, not much reliance can be placed upon his memory as to the precise language used. He might have inquired if any further notice or anything was required, just as Akers says he did, and have forgotten that he used the word anything. He does not say that he did not use it. Now Akers was the justice of the peace who administered the oath to the persons who made the sworn statement, and the justice who made the certificate as nearest magistrate. He went along with the plaintiff to the company’s office to see the business transacted. Having participated in making the paper, which was something besides notice, and being interested, as we may presume, to know whether that paper was sufficient, his testimony is entitled to weight, and we should not be justified in holding that it should not be considered where it goes further than the plaintiff’s.
2_._. agent. II. Upon this point there only remains to be determined whether Bennett had power to make a valid waiver. It is not probable that any agent or officer of the company was expressiy authorized to do it. If, however, it had been provided in the policy that the preliminary proof should be delivered to any particular person, doubtless such person would have had authority to examine whatever was delivered as preliminary proof, and waive any defects which *648he might discover therein. But in this policy it is provided* only that it should be delivered at the office of the company in Cedar Rapids. Under such provision we think that a delivery to any officer or agent of the company at the office, and apparently in charge of it, would be sufficient. That the delivery in this case was made to the proper person we have no doubt. He was one of the occupants of the office, and the company’s adjusting agent. He was accustomed to receive notices of loss, and to act upon the notices by proceeding to make an examination. If Bennett was authorized to receive the preliminary proof, we think his waiver of any defect therein would bind the company, unless his authority in that respect was expressly limited, and the plaintiff had notice of such fact.
3. ._. evidence. III. The paper delivered to Bennett, as preliminary proof of loss, was admitted in evidence, against the defendant’s objection. As a part of the evidence of waiver it was admissible. It was not evidence of the extent of the plaintiff’s damage. If the defendant appre-. hended that the jury might so consider it, it should have asked an instruction limiting the effect of the paper as evidence.
IV. The defendant asked the court to give an instruction which is in these words: “You are instructed that it is incumbent upon the plaintiff to prove -what interest he had in the property at the time of the loss, and whether there was any other insurance on the property, whether the property was incumbered, and the extent thereof, and that the plaintiff has complied with the conditions named in the policy to be performed upon his part; otherwise you will find for the defendant.” The Court refused the instruction, and the refusal is assigned as error.
It was necessary for the plaintiff to prove that he had sustained damage as alleged, and the jury was virtually so instructed in the tenth instruction. There is no warranty in. the policy that no other insurance had been or would be effected upon the property, and no warranty that the property *649was not incumbered. It was not incumbent, therefore, upon the plaintiff to prove that there was no other insurance and no incumbrance upon the property. There was, it is true, one condition to be performed unless waived — the making of the preliminary proof — and upon this the jury was fully instructed.
Y. The defendant complains of an instruction given, which was to the effect that if the plaintiff had sustained loss as alleged, and served upon the company notice of the loss, and a particular account of the loss, containing all the information required by the terms of the policy, etc., the plaintiff would be entitled to recover. It is urged by defendant that there is neither averment nor evidence that preliminary proof was made as required by the policy, and that the jury should not have been instructed upon the supposition that they might so find. We are inclined to think that this instruction should not have been given, but the error was without prejudice, because the jury found specially that the preliminary proof was waived.
4__._. instruction. YI. The defendant complains of the fifth instruction, which submits to the jury the question of waiver 0£ preiiminary pr0of. This instruction is assailed upon the ground that the petition contains no averment that preliminary proof was waived. It avers, however, that the paper served was accepted as proof. That certainly is a waiver of any other proof.
YII. The defendant complains of the seventh instruction, .upon the ground that it assumes a fact not proven, to-wit: that plaintiff went to the office of the company and inquired for the proper person with whom to transact his business, and was referred by the clerks to Bennett. This is not precisely in accordance with the evidence. The evidence shows that plaintiff, upon going in, inquired -for Bennett, who was not in, and was told that he would soon be in. But, according to the view which we have taken of the case, Bennett’s authority did not depend upon any such fact as was supposed *650in the instruction, but upon facts which he himself testified to, and which are undisputed.
YIII. The defendant complains that the verdict is contrary to the evidence, but it is not so clearly so as to justify our interference.
Some other errors are assigned, but we think that they are covered by the views which we have expressed.
Affirmed.