#### Blakeley and others vs. The Phœnix Insurance Company.

*Insurance policy*— Condition *precedent*— Copy *of written portion of other policies to he given by assured, with notice of loss.*

1. A policy of insurance against fire provided that in case of loss the assured should give immediate notice, and as soon as possible render under oath a particular account of such loss, “stating whether any and what other insurance has [had] been made on the said property, *giving copies of the written portions of all poU-cies thereon.'” Held,*that the furnishing of such copies was a *condition precedent,*without the performance of which (if not waived by the company) no recovery could be had on the policy.

2. The affidavit of loss in this case stated that “ there were three hundred dollars additional insurance made on the property, viz., a policy believed to be dated January 27th, 1863, and numbered 6,736, in the Mechanics’ Mutual of Milwaukee, Wis., on the buildiDg;” and that the assured was unable to furnish a written copy thereof, because the policy had been mislaid, and the company had no record of the written part of it. *Held,*that this was not such a compliance with the condition precedent above stated as to render the defendant liable.

*206APPEAL from tbe Comity Court of *Milwaukee,*County.

Action against tbe *Phoenix Insurance*Company, of Hartford, Connecticut, on an insurance policy issued to tbe plaintiff *De Pemor*on bis property, and payable in part to tbe other plaintiffs, *Joseph*and *William Blakeley.*Tbe statement in tbe opinion shows sufficiently tbe point on wbicb tbe case turned, both in tbe court below and in tbis court. Tbe county court beld tbat tbe requirement in tbe policy sued on, in respect to giving a copy of tbe written portion of any other policy upon tbe property, was a condition precedent to plaintiff’s right of recovery ; and tbat tbe same bad not been waived by defendant; and rendered judgment for tbe defendant; from wbicb tbe plaintiffs appealed.

*A. C.*Frazer, for appellants :

Tbe clause in question does not amount to a condition precedent. It is not a separate and independent condition. It seems to be parenthetic or explanatory, and to have been inserted merely to point out a mode of performance of tbe requirement preceding it. Tbe provision requiring a statement of other policies is tbe principal one ; tbe clause under consid eration is purely incidental to tbat, and employed to suggest a convenient and suitable mode of stating such other insurances. Tbe substantial requirement then is, tbat *the*assured shall, in bis account of tbe loss, state what other insurance has been made on tbe property, either by giving an intelligible description of tbe policies, or by giving copies of tbe written portions thereof. A contract which points out a mode of performance, and stipulates for the manner of payment in the event of that mode being adopted, will not be so construed as to prevent a party who performs it in a way different from tbat specified from maintaining an action thereon. Chitty on Con. (9th Am. ed.), 82 ; *Meneiaff v. Meade,*7' C. B., 152-; *8. G,*18 L. J., 145 ; *Boe v. Tranmer,*2 Wils., 75. The requirement is merely directory, and a non-compliance would not be a fatal breach on the part of the assured. *JEtna Ins. Co. v. Miers, 5*Sneed *207(Term.), 139. But construing tbe clause as a condition precedent, counsel insisted tbat a *substantial*compbance was all tbat would be required; and tbat a statement of tbe substance of tbe written portion of any policy, as was done in this case, was sucb a substantial compliance with tbe condition, (a). Conditions in pobcies of insurance should receive a reasonable construction, and as near tbe apparent intent of tbe parties as may be consistent with tbe terms employed, taking into consideration tbe motives tbat led to their insertion and tbe object intended. *Bumsteadv. Ins. Co,,*2 Kern., 81, 92'; *McLaughlin v. Ins. Go.,*23 Wend., 527; *Turley v. Ins. Go.,*25 id., 374, 367. (b.) They should be construed as requiring only good faith on tbe part of tbe assured, and tbe best information be can procure, so as to secure to tbe underwriters all tbe substantial benefits of tbe contract. *Talcotv. Ins. Go.,*2 John Rep., 130 ; *Haff v. Ins. Go.,*4 id., 132 ; *Barlcer v. Ins. Co.,*8 id., 307 ; *Lawrence v. Ins. Co.,*11 id., 241; *Lenox v. Ins. Co.,*3 Johns. Cas., 224; *Gatlin v. Ins. Co.,*1 Sumner, 434; *Norton v. Ins. Go.,*7 Cow., 645 ; *McLaughlin v Ins. Co.,*23 Wend., 525-6 ; *Turley v Ins. Co.,*25 id., 374; *Child v. Ins. Co.,*3 Sandf (Si G), 26; *Bumstead v. Ins. Co.,*2 Kern., 81, 92 ; *Smith v. Gugerty,*4 Barb., 614. (c.) Requirements of tbe by-laws in regard to conditions to be performed by tbe assured, need not be bterally adhered to in cases free from fraud. *JEtna Fire Ins. Co. v. Tyler,*16 Wend., 385, 391, 401; *Bumsteadv. Ins. Co.,*2 Kern., 81, 92 ; 2 Hall, 589.

*Mat. H. Carpenter,*for respondent,

cited Angelí on- Ins., sec. 225; *Woodv. Worsley,*2 H. BL, 574, reversed in *Worsley v. Wood,*6 Term, 710; Marshall on Ins., 707; *Columbian Ins. Co. v. Lawrence,*10 Pet., 507.

Tbe following opinion was filed at tbe June term, 1865:

Downer, J.

Tbe pobcy of insurance provides tbat in case of loss “tbe assured shall forthwith give notice of said loss to tbe said company, and as soon after as possible render a partió-*208ular account of such, loss, signed and sworn to by them, stating whether any and what other insurance has been made on the said property, *giving copies of the written portions of all policies thereon.”*The insured, in his affidavit of the loss, states : “ there were three hundred dollars additional insurance made thereon by the following company, viz: A policy *believed*to be dated January.27th, 1863, and numbered 6736, in the Mechanics’ Mutual, of Milwaukee, Wisconsin, on the building. That he is unable to furnish a written copy thereof, the policy haying been mislaid; and the secretary of the company says he has no record of the written part of said policy.”

It is insisted that the insured should have given, under oath, as part of the preliminary proofs, a cojDy of the written portion of the policy for three hundred dollars; and that, he not haying done this, the plaintiffs cannot recover. It seems to us that this position is well taken. The giving of the copy was a condition precedent. The counsel fox the plaintiffs has very ingeniously argued that the words requiring the copy only pointed out one of the modes in which information of the additional insurance might be given, and that any description in the affidavit giving truly the amount, number, date of the policy, and name of the company which issued it, was sufficient. It is true that the policy provides that the insured shall state what other insurance has been made on the property; and in making this statement he may give all the information which the copy of the written portion of the policy would contain. But it does not follow that there is not in any case any advantage to the company from the clause requiring the copy. We see not why the company may not make it a condition precedent that the information shall be given in a particular mode, even though it adopted an arbitrary, and, as it might appear to us, a useless rule. It is not our province to make conditions or agreements for the parties, but so to construe those made by themselves as not to fritter away the rights of either party It appears to us that the provision requiring the copy is an important one. Itprac-*209tically requires the insured to see and examine the policy just before or at the time of making the oath. "Without that provision the affiant might, as he has done in this case, make an affidavit based upon his recollection or belief of what took place eight months before. With it, he must of necessity refresh his recollection by examining the policy before making the oath, so that there would be scarcely the possibility of his making any untrue statement without committing the crime of wilful and corrupt perjury.

*By the Gourt.*— The judgment of the court below is affirmed, with costs.

A motion for a rehearing was denied at the January term, 1866.

DowNek, J.

It is urged on the motion for a rehearing that the affidavit of *JDe Demor*did give substantially a copy of the written portion of the policy issued by the Mechanics’ Mutual Insurance Co. There is certainly nothing in the affidavit showing that it does. This affidavit states the company, the number of the policy, the amount insured, and on what; but it does not state that the written portion of the policy contained nothing more. The written portions of a policy often contain important special agreements, varying or being in .addition to the printed portions. The affidavit does not even purport to give, to the best of the recollection or belief of the affiant, either a copy of the written 'portion of the policy ox the *whole*of the information contained in the written portion. Eor these reasons, as well as those stated in the former opinion, the motion must be overruled.

*By the Court.*— Motion denied.