*99The opinion of the Court was delivered by
Fenner, J.The action is to recover a loss under a policy of fire insurance.
The defenses will be stated, aud disposed of consecutively.
1. That no proof of loss was ever received, as required by the conditions of the policy.
The insurance in this case was on buildings, a cistern and fences, to the amount of $2,550, and on household furniture aud kitchen utensils to the amount of $450.
The evidence establishes that the defendant was promptly notified of the loss, and that immediately thereafter, the parties entered into prolonged negotiations for' its settlement. Investigations were made by the inspector of the Company. The Company never disputed the loss. It proposed to rebuild, as authorized by the policy. Estimates of the cost of rebuilding were obtained by both parties. They could not agree upon the plans and cost of rebuilding. The whole finally culminated in an offer of the Company to pay $1,500 on the buildings and $450 on the furniture. This was declined, ending negotiations, and followed by the present suit. It appears that the secretary of the Company expressly told plaintiff that he need not make proof of loss. But it is sufficient to say that, during all these negotiations, the insurers made no objection to the absence of preliminary proofs; recognized their liability in absence of such proofs, and placed their refusal to pay on grounds entirely exclusive of said proofs.
All well considered authorities agree that the condition requiring preliminary proofs is one introduced solely for the benefit of the insurer, and which he may waive either expressly or by implication ; and that conduct such as detailed above operates an implied waiver. Flanders on Fire Insurance, p. 541; Priest vs. Citizens’ Insurance Co., 3 Allen, 602; Lewis vs. Monmouth, 52 Maine, 492; Peoria vs. Whitehill, 25 Ill. 466; Great Western vs. Staaden, 26 Id. 360; Blake vs. Exchange, 12 Gray, 265.
2. The appropriation of certain salvage by the plaintiff.
The evidence does not substantiate this charge.
3. Fraud and false swearing in estimation of loss.
It appears that, after the final breaking off of negotiations for settlement, and more than sixty days after the fire, the plaintiff, under the apprehension that such action was a necessary condition precedent to suit, furnished to the Company a sworn statement of the loss. This estimate is charged to be so excessive as to constitute fraud and false swearing, within the condition of the policy.
The defense must fail, for two reasons: 1st, The filing of that statement was entirely superfluous under the circumstances of this case. *100We have already held that there was an implied waiver of the condition requiring preliminary proofs. The effect of such waiver was “ to strike the condition out of the contract.” Flanders F. I. p. 541. “The rule is that if the preliminary proofs are waived, such waiver, in effect, strikes the condition requiring them out of the contract.” Commonwealth Insurance Company vs. Lennett, 41 Penn. 161. 2d, The circumstances under which the statement was made, preclude the idea that there was any intention to deceive or mislead the Company. As shown above, the statement was only made as a preliminary to suit and after the final termination of long-pending negotiations for settlement, in which the only point of controversy was the amount of loss, on which point botli parties had made exhaustive investigations and reached their own positive conclusions. It is not conceivable that plaintiff could have intended or expected that the Company should he deceived or influenced by his statement so made.
The law is well settled that the swearing must not only be false, but it must be knowingly and wilfully done, with intent to cheat.the Company. Franklin vs. Updegraff, 43 Penn. 350; Hoffman vs. Western, 1 La. An. 216; Raffel vs. Nashville, 7 Id. 244; Marion vs. Great, 35 Mo. 148.
4. That under the policy, defendant had the right to rebuild, which they offered to exercise, but were not allowed to do so by plaintiff. The evidence does not establish such a distinct election to rebuild on the part of defendant or such a default on the part of plaintiff to permit them to do so, as would defeat his action for pecuniary indemnity. There were negotiations on the subject of rebuilding in which the parties did not agree, but the defendant never insisted on its right to rebuild nor made any demand on plaintiff to permit the same. On the contrary, the negotiations ended with an offer of pecuniary indemnity which was declined. Nor, in answer to this suit, does defendant tender performance of its alternative obligation. We find nothing in the point.
5. The attempts to bribe an inspector of the Company and abuildor, which are charged against the plaintiff, are not clearly established by the evidence, the language used by him admitting of different interpretation. However that may be, such attempts are covered by no condition of the policy, and we know of no law giving them the effect of extinguishing the Company’s obligation to pay the loss.
On the whole, we conclude that the Company has no just defense.
As to the amount of the. loss, the evidence does not clearly establish that it exceeds the amount actually offered in settlement by the Company, viz: nineteen hundred and fifty dollars.
*101It is, therefore, ordered that the judgment appealed from bo annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that plaintiff have judgment against defendant for the sum of nineteen hundred and fifty dollars, with legal interest from judicial demand, and costs in both Courts.
Rehearing refused.