On Rehearing.
MONROE, J.The plaintiff and his counsel have from the beginning proceeded upon the theory that all fire policies covering property in this state fall under the dominion of Act No. 135, p. 209, of 1900, and hence are valued policies, and that under such policies the insured are dispensed from furnishing the insurer with any information (save, perhaps, that a fire has occurred) and from complying with those provisions of the ordinary, or standard, policy, which are reproduced in the original opinion herein handed down; their position upon the subject being, as we take it, fairly represented by the adjuster employed by the defendant in his letter to plaintiff of February 25, 1904, as follows, to wit:
“On yesterday the writer visited the scene of your ginhouse fire and was exceedingly sorry, to miss you, but, returning to St. Martinsville, and being informed that your claim was in the hands of attorneys Martin & Voorhies, we stated our business and explained to Mr. Martin that we would mail him,, from New Orleans, a form to aid you in making up schedule of your machinery, etc., when he replied that he had two neighbors appraise the loss, and that the company would have to pay all the insurance, to which we replied that an ex parte appraisement, likely made by incompetent friends, would in no wise affect the company’s liability, whereupon Mr. Martin replied that, if that was our opinion, it would be useless to send him any form of statement to make out. This ultimatum left us nothing to do but bid the gentlemen good day. Out of abundant frankness, and warning you, and in view of the attitude assumed by your counsel, we deem it fair to state to you that we shall accept and require full compliance by you with every condition of your policy, and we expressly reserve all our rights thereunder, without waiver of any description.”
Section 22, Act No. 105, p. 151, of 1898, reads:
“No fire insurance company shall issue fire policies on property in this state other than those which shall conform to the requirements of the New York standard form of fire insurance policy.”
Act No. 135, p. 209, of 1900, contains three sections, which (so far as they need be here quoted) read as follows, to wit:
“Section 1. * * * That whenever any policy of insurance is, hereafter, written or renewed on property, immovable by nature and situated in this state, and the said property shall be either partially damaged or totally destroyed, without criminal fault, * * *, the value of the property, as assessed by the insurer, or, as by him permitted to be assessed, at the time of the issuance of the policy, shall be, conclusively, taken to be the true value of the property at the time of the issuance of the policy, and at the time of the damage or destruction. Provided, that nothing herein shall be so construed as to prevent the insurer, previous to the damage or destruction of property, from reducing the insurance thereon.
“Sec. 2. * * * That whenever any policy of insurance against loss by fire is, hereafter, written or renewed on property situated in this state, and the said property shall be totally destroyed, without criminal- fault upon the part of the insured or his assigns, the full amount of the insurance on the property so destroyed shall be paid by the insurer, and that, when said property shall be partially damaged, without criminal fault, the insurer shall pay the insured such amount as will permit the insured to restore the damaged property to its original condition. Provided, that nothing herein shall be so construed as to prevent the insurer from replacing the property partially damaged or totally destroyed, at his own expense and without contribution on the part of the insured.
“Sec. 3. * * * That all laws or parts of laws in conflict with this act are hereby repealed.”
A careful consideration, of the act last above quoted leads us-to the conclusion that the second section is intended merely as complemental of the first, and that, the two sections taken together, the act relates exclusively to policies covering property immovable by nature; the purpose of the second section being to provide specifically that the insurer *336shall pay the amount which, according to the first section, is established by the insurance, subject, however, to the condition that the insurer may, at his option, replace or restore the property.
The third section repeals existing laws, in so far only as they are in conflict with the act, and the statute of 1898 (as quoted) does not conflict with the act in requiring (by prescribing the use of the standard policy) that the insured shall make preliminary proof of loss and shall furnish the insurer with information in regard to the character, situation, and actual value of the property destroyed or damaged, since, conceding that if, in case of the total loss of property which is immovable by nature, the insured shall ■elect to pay, he must pay the amount stipulated in the policy, such proof and information are necessary for his guidance in determining whether he will pay or replace the property, and, a fortiori, are essential in case of partial loss of such property, and as to property which is not immovable by nature the contract, as represented by the standard policy, is unaffected by the act of 1900.
Primarily, therefore, the plaintiff was bound to comply within 60 days with the conditions of his policy, as recited in the original opinion. From the correspondence which took place between his representatives and the adjustment company (representing the defendant) the latter must, however, be considered as having waived such compliance, within the time limit of 60 days, as to the entire claim, and as having waived it entirely as to the buildings, for upon March 14, 1904 '(after the sixty days referred to had expired), the defendants, acting through the adjustment company, wrote to the plaintiff’s representatives, in reply to a communication received from them, in part, as follows, to wit:
“We note that neither you or your client desire to go to court, and we assure you that we are perfectly willing to live absolutely up to our contract, in every particular, and we shall cheerfully pay any loss proven in accordance with our contract. We return the affidavits from your client’s neighbors, which, as explained to you in person, are worthless.
“In an earnest effort to aid you in complying with the contract, and disclaiming any intention whatever of reflecting upon your ability to take care of your client’s interests, we send you proof of loss blank, and call your special attention to lines 76 and 77, and request that you furnish us verified plans and specifications of the machinery damaged or destroyed. So far as the buildings are concerned, we admit a total loss on them, but we will not be liable for any loss to the building now standing, and we give you this notice of cancellation, which will take effect in five days. See lines 51 and 52. We do not think the damage to the boiler and engine will, in any event, exceed $150, and we wish to call your attention to the fact that your client is not protecting the engine as he should. We desire the name, make, and size of both the engine and the boiler.
“Tou should have no difficulty in procuring, from the gin people from whom your client made his purchase, full details of the machinery installed. Trusting, with this explanation, that we will soon be able to reach a conclusion satisfactory to all around, we are
“Tours very respectfully,
“New Orleans Adjustment Company, Ltd.”
As the matter stands, therefore, the defendant, without qualification or reservation of the right to replace the property, admits that the risk on the buildings (except that on the one-story cotton house which the plaintiff admits was saved) resulted in a total loss, and the plaintiff is entitled to a judgment for $800, being the aggregate amount for which those buildings were insured. As to the balance of his claim, whilst asserted under the same contract, it is, as we have seen, predicated upon a contract of which the Act No. 135, p. 209, of 1900, forms no part. Besides which, it is made up of distinct items, and, as it appears to us is so far severable from that portion of the claim which is here adjudicated upon as that, without prejudice to either litigant, it may still be prosecuted when the plaintiff shall have made the preliminary proof as required by his contract.
It is therefore ordered, adjudged, and decreed that in so. far as the judgment appealed from condemns the defendant to pay to the plaintiff the sum of $800, as for insurance on the buildings covered by the policy sued on, *338the same be now affirmed, and that, in all other respects, said judgment be annulled, avoided, and reversed, and the demand of plaintiff rejected as in case of nonsuit. It is further adjudged and decreed that the costs of the appeal be paid by the plaintiff and those of the district court by the defendant.