Dorsey, J.,
delivered the opinion of this court.
The hill of exceptions taken by the appellant in this cause, is to the county court’s refusal to grant the prayer made by him, and to the granting of the third prayer of the defendants.
The plaintiff prayed the court to instruct the jury, “that if they believed the facts set out in the foregoing statement, the defendants have waived the adduction, by the plaintiff, of the preliminary proofs required by the conditions annexed to said policy of insurance, and that such waiver dispenses the plaintiff from now offering evidence of his having furnished the same.”
Assuming, that the letter of the defendants, of the 3rd of March 1840, was a flat denial of the plaintiff’s right to recover, upon a ground going to the merits of the plaintiff’s claim, and having no reference to the preliminary proofs thereof, to be furnished to die defendants, (which, for the plaintiff, is the most favorable light in which it could be regarded,) the plaintiff’s prayer was properly rejected by the court. It carried the doctrine of implied waiver of preliminary proofs, far beyond any of the cases referred to in support of it; and farther tiran it can be legitimately extended upon tire principles on which it is founded.
In the case of Allegre vs. The Maryland Ins. Co., 6 Har. & John., 408, the preliminary proof omitted to be furnished to the underwriters, was the invoice of the cargo insured, which, with all the preliminary proofs requisite in that case, were of such a character, that furnishing them by the insured, at the date of the letter from the Insurance Company, would have been a sufficient compliance with the provisions of the policy, in respect to the preliminary proofs; and a requisition for their production, could, by the assured, at once have been complied with.
The principles upon which the waiver of preliminary proofs depend, are correctly stated in the case of McMasters and Bruce vs. The Western Mut. Ins. Co., 25 Wendell, 382, where the court say, “the law is well settled, that if there be a formal de[186]*186feet in the preliminary proofs, which could have been supplied had an objection been made by the underwriters, to payment on that ground; if they do not call for a document, for instance, or make an objection on the ground of its absence or imperfection, but put their refusal upon other grounds, the production of such further preliminary proofs will be considered as waived. ’ ’ And, speaking of the interviews between the insured and the agents of the company, the court further say, “had the objection been made in the course of these interviews, the defects might at once have been remedied.”
In the case of the Ætna Fire Ins. Co. vs. Tyler, 16 Wendell, 401, Chancellor Walworth says, “the law is well settled in this State, that if there is a formal defect in the preliminary proofs, required by the policy or the custom of the place, and which could probably have been supplied, had any objection been made by the underwriters, to the payment of the loss on drat ground; if the insurers do not call for the document, or make no objection on the ground of its absence or imperfection, but put then refusal to pay distinctly on some other ground, the production of such further preliminary proof will be considered as waived. ” And in 2 Wendell, 71, Ocean Ins. Co. vs. Francis, it is decided, that “where the underwriters make no objection to the sufficiency of proof of interest, but put their refusal, to pay on the ground,, that they are not liable for the loss, it is a waiver of preliminary proof of interest.” Why is it such waiver? Because, had the objection been then raised, the proof of interest, according to the stipulations of the policy, could then, and would, have been adduced by the assured.
But what is the objection to the sufficiency of the preliminary proofs in the case now before us? It is, that the notice of the loss by fire, was not “forthwith’ ’ given, and a particular account of the loss or damage, “as soon after as possible,” delivered by the assured to the assurers. Suppose the objection had been raised in the letter of the president of the Insurance Company, of the 3rd March 1840, could the appellant have bettered his condition? Would notice then given, or an account of loss then delivered, have been a compliance with the conditions of the policy? Unquestionably not. There is no ground, there[187]*187fore, for the implication of the waiver insisted on by the appellant. He could not have removed the objection, had it been made; he has sustained no injury by its non-disclosure. The conduct of the appellees has lulled him into no false security; has prejudiced him, neither in the way of fraud, nor surprise.
Suppose, however, it were otherwise, and that the objection, if raised, could then have been obviated by the appellant, we think the letter of the underwriters, of the 3rd of March 1840, repels every presumption of any waiver on their part, and is an explicit warning and annunciation to the appellee, that they designed to waive nothing, and that on the trial of any action which he might institute against them, he must come prepared to prove every thing, which, according to the terms and conditions of the policy of insurance, it was necessary to prove, to entitle him to recover.
For the reasons we have stated, we think the county court, were right in rejecting the appellant’s prayer.
The third prayer of the appellees, to the granting of which the appellant has excepted, is, “that the plaintiffs are not entitled to recover, because they have not offered evidence, that they forthwith gave notice of the loss to the defendants, or as soon as possible after the fire occurred, delivered to them the particular account of their loss or damage, signed by them, as the nature of the case admitted, and made proof of the same by his oath, and by his books and accounts, and other proper vouchers, as required by the seventh condition attached to the policy.”
To enable us to judge of the correctness of the court’s conduct, in granting this prayer, the meaning of the terms, “forthwith,” and, “as soon as possible,” as used in the policy of insurance, ought to be ascertained To give to them their literal import, would, in almost every case of loss by fire that occurs, strip the insured of all hope for indemnity for the loss incurred; and policies of insurance against fire, would, as to the insured, instead of being contracts of indemnity, as they profess to be, become engines of fraud and injustice in the hands of the underwriters, and a recovery by the insured, would lie rarely, indeed, if ever practicable. Such a construction, [188]*188therefore, has not been sanctioned by courts of justice. The true meaning of those terms is, with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case. See Inman vs. Western Fire Ins. Co., 12 Wendell, 461, where it was determined that, “forthwith,” in such a policy, imposes upon the insured nothing more than what is called due diligence, under all the circumstances of the case;” and Cornell vs. Le Roy, 9 Wendell, 166, where it was decided, that “the assured is, as soon after the fire as possible, to deliver in a particular account of such loss or damage, and this means no more, than it is to be done with due diligence, under all the circumstances of the case; there is to be no unnecessary procrastination or delay.”
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Dorsey, J.,
delivered the opinion of this court.
The hill of exceptions taken by the appellant in this cause, is to the county court’s refusal to grant the prayer made by him, and to the granting of the third prayer of the defendants.
The plaintiff prayed the court to instruct the jury, “that if they believed the facts set out in the foregoing statement, the defendants have waived the adduction, by the plaintiff, of the preliminary proofs required by the conditions annexed to said policy of insurance, and that such waiver dispenses the plaintiff from now offering evidence of his having furnished the same.”
Assuming, that the letter of the defendants, of the 3rd of March 1840, was a flat denial of the plaintiff’s right to recover, upon a ground going to the merits of the plaintiff’s claim, and having no reference to the preliminary proofs thereof, to be furnished to die defendants, (which, for the plaintiff, is the most favorable light in which it could be regarded,) the plaintiff’s prayer was properly rejected by the court. It carried the doctrine of implied waiver of preliminary proofs, far beyond any of the cases referred to in support of it; and farther tiran it can be legitimately extended upon tire principles on which it is founded.
In the case of Allegre vs. The Maryland Ins. Co., 6 Har. & John., 408, the preliminary proof omitted to be furnished to the underwriters, was the invoice of the cargo insured, which, with all the preliminary proofs requisite in that case, were of such a character, that furnishing them by the insured, at the date of the letter from the Insurance Company, would have been a sufficient compliance with the provisions of the policy, in respect to the preliminary proofs; and a requisition for their production, could, by the assured, at once have been complied with.
The principles upon which the waiver of preliminary proofs depend, are correctly stated in the case of McMasters and Bruce vs. The Western Mut. Ins. Co., 25 Wendell, 382, where the court say, “the law is well settled, that if there be a formal de[186]*186feet in the preliminary proofs, which could have been supplied had an objection been made by the underwriters, to payment on that ground; if they do not call for a document, for instance, or make an objection on the ground of its absence or imperfection, but put their refusal upon other grounds, the production of such further preliminary proofs will be considered as waived. ’ ’ And, speaking of the interviews between the insured and the agents of the company, the court further say, “had the objection been made in the course of these interviews, the defects might at once have been remedied.”
In the case of the Ætna Fire Ins. Co. vs. Tyler, 16 Wendell, 401, Chancellor Walworth says, “the law is well settled in this State, that if there is a formal defect in the preliminary proofs, required by the policy or the custom of the place, and which could probably have been supplied, had any objection been made by the underwriters, to the payment of the loss on drat ground; if the insurers do not call for the document, or make no objection on the ground of its absence or imperfection, but put then refusal to pay distinctly on some other ground, the production of such further preliminary proof will be considered as waived. ” And in 2 Wendell, 71, Ocean Ins. Co. vs. Francis, it is decided, that “where the underwriters make no objection to the sufficiency of proof of interest, but put their refusal, to pay on the ground,, that they are not liable for the loss, it is a waiver of preliminary proof of interest.” Why is it such waiver? Because, had the objection been then raised, the proof of interest, according to the stipulations of the policy, could then, and would, have been adduced by the assured.
But what is the objection to the sufficiency of the preliminary proofs in the case now before us? It is, that the notice of the loss by fire, was not “forthwith’ ’ given, and a particular account of the loss or damage, “as soon after as possible,” delivered by the assured to the assurers. Suppose the objection had been raised in the letter of the president of the Insurance Company, of the 3rd March 1840, could the appellant have bettered his condition? Would notice then given, or an account of loss then delivered, have been a compliance with the conditions of the policy? Unquestionably not. There is no ground, there[187]*187fore, for the implication of the waiver insisted on by the appellant. He could not have removed the objection, had it been made; he has sustained no injury by its non-disclosure. The conduct of the appellees has lulled him into no false security; has prejudiced him, neither in the way of fraud, nor surprise.
Suppose, however, it were otherwise, and that the objection, if raised, could then have been obviated by the appellant, we think the letter of the underwriters, of the 3rd of March 1840, repels every presumption of any waiver on their part, and is an explicit warning and annunciation to the appellee, that they designed to waive nothing, and that on the trial of any action which he might institute against them, he must come prepared to prove every thing, which, according to the terms and conditions of the policy of insurance, it was necessary to prove, to entitle him to recover.
For the reasons we have stated, we think the county court, were right in rejecting the appellant’s prayer.
The third prayer of the appellees, to the granting of which the appellant has excepted, is, “that the plaintiffs are not entitled to recover, because they have not offered evidence, that they forthwith gave notice of the loss to the defendants, or as soon as possible after the fire occurred, delivered to them the particular account of their loss or damage, signed by them, as the nature of the case admitted, and made proof of the same by his oath, and by his books and accounts, and other proper vouchers, as required by the seventh condition attached to the policy.”
To enable us to judge of the correctness of the court’s conduct, in granting this prayer, the meaning of the terms, “forthwith,” and, “as soon as possible,” as used in the policy of insurance, ought to be ascertained To give to them their literal import, would, in almost every case of loss by fire that occurs, strip the insured of all hope for indemnity for the loss incurred; and policies of insurance against fire, would, as to the insured, instead of being contracts of indemnity, as they profess to be, become engines of fraud and injustice in the hands of the underwriters, and a recovery by the insured, would lie rarely, indeed, if ever practicable. Such a construction, [188]*188therefore, has not been sanctioned by courts of justice. The true meaning of those terms is, with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case. See Inman vs. Western Fire Ins. Co., 12 Wendell, 461, where it was determined that, “forthwith,” in such a policy, imposes upon the insured nothing more than what is called due diligence, under all the circumstances of the case;” and Cornell vs. Le Roy, 9 Wendell, 166, where it was decided, that “the assured is, as soon after the fire as possible, to deliver in a particular account of such loss or damage, and this means no more, than it is to be done with due diligence, under all the circumstances of the case; there is to be no unnecessary procrastination or delay.”
In all ordinaiy cases, whether due diligence has been used by the insured, or he has been guilty of no unnecessary procrastination or delay under all the circumstances of the respective cases, are questions of fact to be determined by a jury. We cannot assent to the proposition contended for by the appellees, that the same transmission of notice of loss necessary to constitute due diligence on the part of the insured in this case, that according to “ The Law Merchant,” and an unbroken chain of decisions of courts of justice, is deemed due diligence by the holder of a bill of exchange or promissory note, seeking to charge those contingently liable for the payment thereof, viz: that notice must be transmitted to those sought to be charged by it, by the next mail after the dishonor of the bill or note. Such a rule, as an unbending principle of law, has not, and we think ought not, to be applied to contracts like that now before this court. And in reference to such contracts, we entirely concur’ with the views and principles so perspicuously and force-ably stated, in note (p.) to page 451, of 1 Stark, on Ev., as follows, “in general, questions of reasonable time,'reasonable care, due diligence, probable cause, and such like, depend so much on their own peculiar circumstances as not to admit conveniently of any general rules, and it is of greater convenience •to depend on the judgment and discretion of a jury, deciding on a comparison of the circumstances with the ordinary course of practice, or with reference to the ordinaiy principles of fair [189]*189and honest dealing, than to introduce such a multiplicity of legal rules and definitions as would be necessary for the due decision of cases, subject to such infinite variety of circumstances. It is, in truth, a matter of important, and obvious policy, rather to refer questions of this nature as matters of fact to a jury, than to frame legal rules applicable to particulars. The difficulty of framing precise rules must, in such circumstances, be very great, for the reasons adverted to, unless they be founded on some prominent and decisive incidents. Whenever the court decides upon circumstances, the decision would become a precedent and rule of law, and as such decision would afford room, by comparison, for a great number of distinctions, the obvious effect would be, to multiply such decisions and distinctions to a very inconvenient and burthensome extent. On the other hand, by abstaining from legal decision, except in cases where some decisive rule or principle of law is clearly applicable, and by adopting in others the inference of the jury, in point of fact, substantial justice is administered in simplicity, and free from perplexity occasioned by nice and subtle distinctions, and conflicting decisions. And this is an advantage, and by no means-an unimportant one, incident to the system of trial by jury: the law can thus deal in general definitions and leave the rest as fact to the jury, without multiplying decisions and precedents; but if the judges, and not the jury, were to decide, every decision would become a precedent, and legal distinctions would be multiplied to an excessive extent. ’ ’
According to the facts in this case, as appearing on the record, would it be irrational in the jury to conclude, that the plaintiff had been guilty of no want of due diligence in not forwarding a notice of the loss by the mail of Wednesday, by reason of •his being so occupied on Tuesday in doing “every thing in his power for the safety and protection of the property insured,” which, byr the express terms of the policy, he was bound to do, that he had neither time, nor opportunity, to put the notice in the post office in time for the mail of that day.
The defendant’s third prayer, withdrawing from the consideration and finding of the jury the question, as to due diligence in giving notice of the loss by fire, and the question whether [190]*190there was any unnecessary delay in delivering the particular account of the loss, we think that in granting that prayer, the county court were in error.
But, conceding that we are wrong in the opinion we have expressed,' as to the tribunal by which the question of due diligence in giving notice, to the Insurance Company, of tire time of loss, is to be determined, and that to shew due diligence, the plaintiff must prove that such notice was put into the post office in time for the next mail, (after the fire,) from Farransville to Baltmiore, the county court, in granting the third prayer of the defendants, took that fact from the consideration of the jury, and determined it in the negative; although there was evidence before the jury, from which it was competent for them to find, if they believed from the evidence, the fact so to be, that such notice was put into the post office, in time to have been transmitted in the first mail, after the fire, from Farransville to Baltimore. On this ground, if all others were wanting, we think there is error in the court below in giving to the juiy the instruction prayed for in the defendant’s third prayer.
We concur with the county court in its rejection of fire plaintiff’s prayer, but dissent from its granting the defendant’s third prayer, and therefore reverse its judgment.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.