(Fayette County Common Pleas,

1891.)

#### DUN & CO. v. GERMANIA FIRE INSURANCE CO.

1. To entitle a partnership to recover a policy of insurance issued to such partnership it must be shown that at the time the policy was issued and at the time the property was destroyed, such property was owned by such partnership.

2. A partnership may be dissolved by agreement of. the parties, which may be either express, or may be inferred from the acts and conduct of the partners, but a mere intention to dissolve without acts to carry such intention into effect would not end the partnership.

3. Where a partnership was formed to. carry on a banking business, the fact that one of the partners without consulting the other partner purchased a stock of goods for the firm in good faith to satisfy a judgment held by the firm against the owner of such goods, and that thinking it for the best interest of the final, he kept such store open as a going concern a**t sold goods therefrom, will not deprive such transaction of its character as a partnership transaction and be prove of a dissolution of the firm.

4. The fact that one member of a firm went to another state to live, and paid no more attention, to the firm business, will not in itself work a dissolution of the firm.

5. A notice of the loss given immediately after the fire, or as soon thereafter as-can be done with reasonable diligence, to the agent of the company, at the place where the fee occurred, or to the company, is a sufficient *613compliance with the condition of the policy-requiring notice of the loss to be given to the company.

6. Waiver of the proof of loss by the company does not make tibe claim due at once, but the company would still be entitled to the sixty days' after the waiver to investigate and for other proper purposes unless it notifies the insured that it will not pay in any event.

7. An insurance company may waive the requirement in the policy of preliminary proof Qf loss, either by its direct action or by its agent by virtue of his authority. Such waiver may be inferred from the denial of obligation to pay.

8. An adjuster employed by the insurance' company to act for it in the matter, is its agent and binds it for all he does in the matter within the scope and line of his employment and duties.

9. Mere silence on the part of the insurance company will not amount to a waiver of proof of loss, nor would the sending of agents to inquire or investigate the matter of the loss, nor an attempt to compromise the matter, in themselves amount to a waiver of proof of loss, provided nothing was done that would cause a man of ordinary judgment to believe that formal proofs of loss were waived.

10. If an insurance company waived proof of loss, it can afterwards recall or reclaim such waiver and demand such proofs.

11. Where the policy provides that in case of differences touching the loss the matter shall at the written request of either party be submitted to arbitration, neither party is entitled to more than one appraisement. If an appraisement of only a part of the loss is called for, no reappraisement of such part can be demanded.

12. The privilege to demand an arbitration must be exercised within a reasonable time after the right thereto arises.

The judgment in this case was affirmed, with order of remittitur of excess over $4,200, by the circuit court, November term, 1891, and by the supreme court without report, 52 Ohio St., 639, 33 W. L. B., 336.

Charge to the Jury.

Evans, J.

Gentlemen of the Jury: In order to recover-in this action the plaintiff must prove, by a pre-, ponderance of the evidence, that said Dun & Company was a partnership doing business in' Ohio as alleged; and that, at the time the policy of insurance was issued and at the time the property described therein was injured or destroyed by fire, such property was owned by said partnership; that said property was injured or destroyed by fire as claimed and the amount of such injury or loss; and that the plaintiff performed all the conditions of said policy on its part, or that the defendant waived such of the conditions as were 'not performed by it, sixty days before bringing this action; that such of said conditions as by the terms of the policy were required to be performed sixty days before suit brought, were performed, or the performance thereof was waived by the defendant sixty days before the suit was brought.

• The policy of insurance is the contract between the parties. The indorsement upon or attached, specifying how much of said ?5,ooo, the amount named ,is upon specified classes of said property, is a part of the policy. Both parties are bound by, and have a right to insist upon the performance of, all the terms and conditions of the contract of insurance, the plaintiff as much as the defendant, and the defendant as mucin as the plaintiff, and either as much as an individual might do under like 'circumstances.

The plaintiff must have been, as alleged, a partnership doing business in Ohio, and the owner of the said property. If at the time the policy of insurance was issued, the firm or partnership of Dun & Company had been dissolved, and was not in existence, then the representation that the property was the property of Dun & Company, would avoid the policy, and the plaintiff cannot recover if the property was, in fact, the property of Albert Dun and not of Dun & Company; and this would be so whether such misrepresentation, as to the ownership of the goods were made intentionally or unintentionally by the said Dun. Whether or not the firm of Dun & Company was an existing partnership and the owner of the goods in question at the time the policy was issued, and at the time the goods were injured by fire, is a question of fact to be determined by you from the evidence; and the burden of proving it by preponderance of the evidence, is upon the plaintiff.

A partnership, at will, may be dissolved by agreement of the partners. It may be done by an express agreement to that effect. But an express agreement is not essential. It may be done and inferred by acts and conduct of the partners, or one of them, showing an- intention, put into effect, to terminate and put an end to the partnership. An intention without carrying such intention into effect, would -not put an end to the partnership. The fact, if a fact, that Creighton went to Los Angeles to live at a time mentioned, and paid or gave no further personal attention to the business of Dun & Company, but. left it -Wholly to Dun, would not in itself work a dissolution of the firm. But from this circumstance, and all other facts bearing thereon, disclosed by the evidence, you will determine as a matter of fact, whether or not the partnership had been dissolved be*614fore the policy was issued, or before the fire. If it had been dissolved the plaintiff cannot recover. If it had not been dissolved before itlie policy was issued, or before the fire, if it was an existing partnership, as alleged by the plaintiff, and the owner of the goods, it can Tecover, if it has in other respects made out its case under the instructions. If Dun & Company was a partnership for the purpose ■only of carrying on a banking business, the fact, if a fact, that Dun purchased the goods for the firm of Dun & Company in consideration for and in satisfaction of a judgment in favor of Dun & Company against the then •owner thereof, without consulting Creighton ■or getting h,is consent thereto, did it in good faith, thinking it for the best interest of Dun .& Company to do so; and the further fact, if .a fact, that he, thinking it for the best interest •of Dun & Company to do so, kept the store, of which the goods in question constituted the ■stock,' open as a going concern and sold goods .therefrom for a time, will constitute no defense for the defendant in this action.

The policy of the insurance contains, as one ■of its terms and conditions, this: '‘that in case ■of loss the amount therof shall be estimated .according lo the actual cash value of the property at the time of the loss, and be paid sixty days after due notice and proof of loss made 'by the assured and received at the office of the company in accordance with the terms of the policy.” It also contains that in case of loss the insured shall forthwith give notice to the company of such loss, and shall render a particular account of said loss, signed and sworn to by the insured, which shall contain the matters particularly specified in condition seven of ■the policy. These conditions are binding upon the plaintiff, and it cannot recover unless it has shown thatitperformed them, or has shown waiver of such performance on their part by the defendant. This notice and proof of loss must be furnished, or waived, too, within sixty days before the insured is entitled to payment or has a right to bring a suit for the same. If the insured brings suit within sixty days, he must fail, except in the event of the company denying all liability on the policy. In the latter event an action may be commenced without waiting the time limit-sixty days. *Bliss, L.Ins,*§ 355-8; *Woods, Ins.728.*

Waiver of proof of loss does not make the claim due at once; the company would still be entitled to the sixty days after the waiver to investigate, and for such other purposes afe it might want the time for, except as stated, unless it notifies the insured that it will not pay in any sixty days after proofs of loss is deemed waived. So also, a denial of all liability, made after inquiring into the loss, on the ground that the loss is not within the policy, or that the policy is void, is a waiver of the clause requiring proof of loss.

A notice of the loss-given immediately after the fire or as soon thereafter as it can be done with reasonable diligence, to the agent of the company at the place where the fire occurred, or with such diligence causing notice of the loss to be brought to the knowledge of the company, is a sufficient compliance with the condition requiring notice of the loss to be given to the company.

“The requirement of preliminary proofs of loss is a formal condition, inserted in the policy solely for the benefit of the insurer. That such proofs may be waived, in whole or in part, is well settled as a legal proposition. Th,e waiver may be by the direct action of the insurer, or by his general agent, by virtue .of his authority.

The waiver may be express, or it may be inferred from the denial of obligation by the insurer, exclusively for other reasons.” *Insurance Co.*v. *Parisot,*35 Ohio St., 40

A waiver may be inferred from the acts and declarations of the company, or of its authorized agents acting within the scope of their employment. The adjuster, employed by the defendant to act for it in the matter, was the agent of the company, and all he did in the matter within the scope and line of his employment and duties as such adjuster, were the acts of the company and binding upon it.

Mere silence on the part of the company will not amount to a waiver of proof of loss; nor would the sending of agents to make inquiry, or investigation into the matter of the loss; nor would even an attempt to compromise the matter, either or all of them, in themselves amount lo waiver of proofs of loss, provided nothing was done while so engaged that would cause a man of ordinary judgment and discretion to’ believe that formal proofs of loss were waived. But if such agent or agents while so engaged, act in the matter so as to cause the insured to believe that proofs of loss are waived, and their acts are such as would have caused a man of ordinary discretion and judgment to so believe, and the insured, by reason thereof, refrain from making such proof, such acts will amount to a waiver of such proof. If the company, ty its adjuster or agent, proceeds to investigate the matter of the loss on its merits, and by what it does, causes the insured to believe, and a man of ordinary . judgment under the circumstances would have so believed, that it is only the amount of the loss that is in dispute, and nothing else, between the parties, that will amount to a waiver of proofs of loss. So, as said, an absolute refusal to pay on the merits of the *615claim, or a denial of liability to pay in any event, will amount to a waiver. The company must not by its acts, or by the acts of its agents acting within the line of their duties and authority as such agents, do anything that will throw the insured off of his guard, and cause him to believe that proofs of loss are not wanted by the company. If such acts are such as would cause a man of ordinary judgment and discretion to so believe, in like circumstances, and the insured so . believed and acted on such belief, the company will be held to have waived such proofs.

From the fact, if a fact, that the company sent an agent to the place of the loss to make investigation in regard to the same, and from what the evidence may show, if anything, he did about making such investigation; from the fact, if a fact, that the company sent an adjuster to adjust such loss and from all such adjuster did in regard to the matter; from the fact, that the plaintiff and defendants, on April 22, 1889, pursuant to the condition in the policy, set out in printed matter in the third defense as amended, .selected two persons to appraise and estimate at the true cash value the damage by fire to such of said property covered by the policy as might be found in a damaged condition, as alleged in said defense; the fact of such appraisement being made and reported by such appraisers; the fact, if a fact, that Dun and such adjuster agreed upon the loss upon other of the property covered by the policy; from what the evidence shows was done and passed between said adjuster and Dun while about the matter of attempting to adjust such loss, altogether, from all these and from all circumstances disclosed by the evidence, you will determine whether or not the company waived proof of loss, the burden of proving such waiver, by a preponderance of the evidence, being upon the plaintiff. If so waived sixty days before suit brought, the plaintiff is entitled to verdict if it has other- ¡ wise made out its case. If such waiver was made within sixty days before the suit was brought, the plaintiff cannot recover, unless the plaintiff prove there was an absolute refusal by. the company to pay in any event.

The policy contains a condition, providing that in case difference shall arise touching any loss, after proof thereof has been received in due form, the matter shall, at the written request of cither party, be submitted to impartial appraisers, one to be selected, etc.

This is a condition that may be waived by the parties, in whole or in part. The defendant alleges that, in pursuance of said condition of the policy, the parties did select two appraisers to appraise the damage by fire to certain of the property covered by said policy, and that the appraisers made and returned such an appraisement. It further alleges, that afterwards, Dun, aoting for the plaintiff, and one J. B. Flail, an adjuster, acting for defendant, not being able to agree upon the amount of damages to the other property, thereupon the defendant demanded an appraisement of said loss under said policy in the manner provided for in said condition; but that Dun, for the plaintiff, refused to enter into the same, and that it has not been able to get such an appraisement.

Neither party is entitled to demand and have more than one appraisement under said condition ; if once demanded and appraisement had, neither can under this clause demand and have a second appraisement of the same. If only an appraisement of a part of the loss is called for under this clause, and both parties understood at this time that the appraisement demanded and made was only an exercise in part of the right given in this condition-, to say the least, neither party can again demand a reí appraisement of the part so appraised.

It is- a privilege, too, that should be exercised within a reasonable time after the right to demand it arises. Neither party can be reí quired to wait indefinitely the pleasure of the other in the matter of demanding such an appraisement. The insured could not be re-. quired to wait unnecessarily and hold the property in the condition it was left by the fire; serious expense and loss might result thereby to him.

If the only written demand, after the partial appraisement had, mentioned, was th'e letter offered in evidence, dated July 23, 1889, the defendant was,not entitled to such an appraise-, ment.

There being no evidence to prove any other-written request, you are instructed to find against the defendant on the third defense, and in favor of the plaintiff upon the issue-as to it.

The following special instruction, agreed' upon by counsel, is requested, to-wit:

> “As to the property covered by the policy of insurance, that was saved in a damaged condition and submitted to appraisers by the parties, the amount of damage assessed by the appraisers and returned by them as their award' was $1,347.85.”

If you find it necessary to inquire into the amount of damages sustained by the fire, then I charge you that as to that part of the property which was submitted to the appraisers, the damages fixed .by the appraisers and returned in their award is conclusive, as to the amount.

• Also special instruction *No. 2*asked by defendant is given as requested and excepted tq by plaintiff;

*616*Craighead & Craighead,*and *Mills Gardiner,*for Defendant.

*Hidy & Patton,*for Plaintiff.

> “That the papers showing that this action was begun by the filing of the petition on June 22, 1889, the waiver, if, any, must have been ma 'e at least sixty days before that time, to enable the plaintiff to recover, unless an absolute refusal to pay in any event had been made by the defendant.”

Also special instruction asked by plaintiff:

> “In determinng whether the sixty days had elapsed before the action was commenced, you are not necessarily to be governed by the date when negotiations ceased between the parties in reference to the loss, but will determine from all the facts and circumstances in evidence the time when, if ever, the company waived said proofs of loss.”

If under the circumstances you find for the defendant, you will return a verdict finding, upon the issues, in favor of the defendant. If you find for the plaintiff, you will return a verdict finding, upon the issues, in favor of the plaintiff, .and award it damages in the amount you find from the evidence was the loss upon the property described in the policy caused by such fire, and the amount of loss or damages to be estimated according to the actual cash value of the property at the time of the loss, with interest from the time it should have been paid; but you will understand that you must keep in mind and be governed in fixing the amount by the special instruction above given.

In no event can the amount of damage awarded exceed $3,500 on that part of the property designated as stock; exceed $400 on soda fountain and fixtures inventoried; or exceed $1,100 on the furniture and fixtures mentioned.

And the defendant then on the trial excepted to said charge, as a whole, and to all the several parts of said charges marked on the margin thereof excepted to. And the defendant excepted to the special charge and instructions asked for by the plaintiffs.

The defendant asked the court to charge the jury, as follows:

> “In order to effect a dissolution of a partnership it is not necessary that there be a formal dissolution of the firm, agreed upon between the partners. It is sufficient if they have separated with the intention of giving up an discontinuing their relations to each other as partners. You will, therefore, in this case consider all the testimony that has been offered in relation to this partnership in connection with the conduct of the members of the partnership toward each other, to determine whether the firm of Dun & Company at the time of bringing thlis action was a firm doing business in the state of Ohio-.”

But the court refused to give said instructions, to which refusal to so instruct the jury the defendant then excepted.

The defendant further asked the court to charge and instruct the jury as follows:

> “If the firm of Dun & Company was' not dissolved at the time Dun purchased the stock of drugs, etc., at sheriff’s sale, and was a firm organized only to do a banking bu: 'ness in Sabina, Ohio, and Creighton had gone away, leaving his partner to conduct and carry on that business in his absence, then Dun would have no right to have purchased this stock of goods in the name of Dun & Company, and gone into this new business in that name without the knowledge and consent of Creighton; and if he did so, and Creighton did not consent to it at the time or subsequently, then the purchase did not bind the firm of Dun & Company, and Dun & Company did not by such purchase become the owner of said stock, and it was a misrepresentation for Dun & Compny to take out the policy of insurance in the name of Dun & Company, and under that provision of the policy requiring the assured to make known the ownership, the policy would be void and the company not liable.”

The court refused to give to the jury said charge and instruction, to which refusal the defendant then excepted.

The defendant further asked the court to charge and instruct the jury as follows: “That the submission of the question of damages as to the property saved in a damaged condition by Hall and Dun, was not a waiver of the right of the defendant subsequently to demand proofs of loss.”

But the court, refuse' to give the said charge and instruction to the jury, to which refusal the defendant then excepted.