Pmiiips, P. J.
This is an action based upon a contract of insurance against loss by fire. Plaintiff recovered judgment below, and defendant prosecutes this appeal. The property insured was a one-story frame building, valued at one hundred dollars, and one American fruit evaporator contained therein, valued at three hundred dollars. The premium was paid and policy issued in October, 1885, and was to run for one year. The fire occurred on the fifteenth day of March, 1886. The policy contained the usual stipulations respecting the duty of the assured, in case of loss, to give immediate notice thereof to the insurer, and to furnish an account of the loss, etc.
The answer tendered the following specific defences: (1) that plaintiff failed to give notice and furnish the required proof of loss; (2) that the action was barred because the same was not brought within the period of six months after the loss, as provided in the policy.
The reply tendered the general issue as to the new matter set up in the answer, and further pleaded that defendant, by its conduct, etc., had waived the requirement as to furnishing proof of loss.
I. At the trial, as in the motion in arrest of judg[110]*110ment, the defendant raised an objection to the sufficiency of the petition, on the ground that it did not aver performance by the plaintiff of the condition precedent contained in the policy, relating to the furnishing of proofs of loss. The petition distinctly avers that “ plaintiff has complied with all the conditions of said policy upon his part.” The Supreme Court have held this to be sufficient under our practice act. Richardson v. Ins. Co., 57 Mo. 413.
II. The contract required that the assured, in the case of loss by fire, should immediately give notice thereof to the company, and should also, within sixty days, furnish the proofs of loss to the company. • The notice was given, but the prescribed proof of loss was not furnished. To excuse this failure the plaintiff relies upon the claim that defendant, by its acts, conduct, and declarations, had waived this condition of the contract. To this, defendant objects (1) that no such issue is tendered by the pleadings. It was said in St. Louis Ins. Co. v. Kyle, 11 Mo. 278: “Nor do I perceive any objection to such evidence on the ground that the pleadings involve a different issue. It is merely evidence of performance. It is not a case of substitution of a new contract for an old one ; it is not an excuse for non-performance, by the prevention or discharge of the defendants ; but it is evidence of performance. The party for whose benefit the condition is inserted, is presumed to understand its import, and his acceptance is the strongest evidence that the act agreed to be done has been done according to contract.” Nap ton, J., fully considered this question in Russell v. Ins. Co., 55 Mo. 585, reaffirming the doctrine of the Kyle case, that, under the allegation of performance, proof of a waiver by defendant was admissible. The proof was certainly admissible when the plaintiff, in reply to the matter of defence set up in the answer, pleaded the fact of waiver, which was not a departure. (2) It is next objected to the admission of this proof) that, by the provisions of the contract of policy, no [111]*111waiver could arise unless the same had been indorsed in writing on the policy by the company. Reliance ior this extreme proposition is placed on the usual provision in such policies, requiring a distinct agreement, indorsed on the policy, to effect “a waiver of any printed or written condition or restrictions therein.” Such a provision as this has no application to the acts to be performed after the loss occurs. It has reference to those conditions and provisions of the policy which form a part of the contract of insurance, essential to make it a binding contract between the parties. Van Allen v. Ins. Co., 4 Hun, 413; Ins. Co. v. Ins. Co., 36 Md. 102; Rokes v. Ins. Co., 51 Md. 512; Whited v. Ins. Co., 76 N. Y. 418.
III. The only remaining question of importance is, were the facts in evidence sufficient to warrant the court in submitting the issue of a waiver to the jury % A waiver is a mixed question of law and fact. Each case must necessarily depend much upon its own peculiar circumstances and surroundings. It is a question of intention, and a fact to be determined by the triers of fact. Ehrlich v. Ins Co., 88 Mo. 249; Drake v. Ins. Co., 3 Grant [Pa.] 325; Witherell v. Ins. Co., 49 Me. 200. ‘Where there is any evidence as to the authority of the agent to act in the premises, and of an actual waiver of condition on the part of the agent, it is for the jury; and though a waiver must be intentional and clearly proven, the sufficiency of the evidence relating thereto is for the jury.” Ins. Co. v. Schollenberger, 44 Pa. St. 259. Wood on Insurance (sec. 496) lays down the general rule to be, that: “When the insurer, knowing the facts, does that which is inconsistent with its inten,tion to insist upon a strict compliance with the conditions precedent of the contract, it is treated as having waived their performance, and the assured may recover without proving performance, and that, too, even though the policy provides that none of its conditions shall be waived except by written agreement. •* * * The production of proofs of loss, or defects therein, [112]*112may be'waived, and such waiver maybe implied from what is said or done by the insurer.” This rule applies as well to the absence of any proof of loss as to defective proofs. Wood on Ins., sec. 419% As such preliminary proofs are for the sole benefit of the insurer, as a means of enabling it to ascertain the character and extent of the loss, there can be no reason why it may not either waive, in toto, the furnishing of this proof, or extend the time for making the same. As said in Rokes v. Ins. Co., supra: “Estoppel, as an element in connection with a waiver of preliminary proofs of loss, means where the insurer, knowing that the proofs have-not been furnished within time, so bears himself thereafter, in relation to the contract, as fairly to lead the assured to believe that he still recognizes the policy to-be in force and binding upon him.”
What does the bill of exceptions disclose in this case? On receipt of the notice of the fire and the destruction of the property insured, the company at once replied that the matter would be attended to so soon as its adjusting agent, who was then absent, returned. This indicated to the assured that an adjuster would come upon the grounds to satisfy himself of the-loss, etc. So the plaintiff waited until May, nearly two months, when he again wrote the company. To this it replied as follows:
“ State Insurance Co., Des Moines, la. } ‘ ‘ Home Office, May 29,1886. [
“T. GL Okey, Humansville, Mo.,—
“Dear Sir: Your favor of the fifteenth inst. has-been received and noted. The papers in your case have been in the hands of our adjuster for a long time, but he has had so much to do that he has not been able to reach you. There is no intentional delay in this matter, we assure you, as we are as anxious to have the matter receive attention as any one.
“Yours truly,
“ J. C. Cummins, Sec’y.” _
[113]*113The time for. making the .preliminary proofs of loss was then about to expire.
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Pmiiips, P. J.
This is an action based upon a contract of insurance against loss by fire. Plaintiff recovered judgment below, and defendant prosecutes this appeal. The property insured was a one-story frame building, valued at one hundred dollars, and one American fruit evaporator contained therein, valued at three hundred dollars. The premium was paid and policy issued in October, 1885, and was to run for one year. The fire occurred on the fifteenth day of March, 1886. The policy contained the usual stipulations respecting the duty of the assured, in case of loss, to give immediate notice thereof to the insurer, and to furnish an account of the loss, etc.
The answer tendered the following specific defences: (1) that plaintiff failed to give notice and furnish the required proof of loss; (2) that the action was barred because the same was not brought within the period of six months after the loss, as provided in the policy.
The reply tendered the general issue as to the new matter set up in the answer, and further pleaded that defendant, by its conduct, etc., had waived the requirement as to furnishing proof of loss.
I. At the trial, as in the motion in arrest of judg[110]*110ment, the defendant raised an objection to the sufficiency of the petition, on the ground that it did not aver performance by the plaintiff of the condition precedent contained in the policy, relating to the furnishing of proofs of loss. The petition distinctly avers that “ plaintiff has complied with all the conditions of said policy upon his part.” The Supreme Court have held this to be sufficient under our practice act. Richardson v. Ins. Co., 57 Mo. 413.
II. The contract required that the assured, in the case of loss by fire, should immediately give notice thereof to the company, and should also, within sixty days, furnish the proofs of loss to the company. • The notice was given, but the prescribed proof of loss was not furnished. To excuse this failure the plaintiff relies upon the claim that defendant, by its acts, conduct, and declarations, had waived this condition of the contract. To this, defendant objects (1) that no such issue is tendered by the pleadings. It was said in St. Louis Ins. Co. v. Kyle, 11 Mo. 278: “Nor do I perceive any objection to such evidence on the ground that the pleadings involve a different issue. It is merely evidence of performance. It is not a case of substitution of a new contract for an old one ; it is not an excuse for non-performance, by the prevention or discharge of the defendants ; but it is evidence of performance. The party for whose benefit the condition is inserted, is presumed to understand its import, and his acceptance is the strongest evidence that the act agreed to be done has been done according to contract.” Nap ton, J., fully considered this question in Russell v. Ins. Co., 55 Mo. 585, reaffirming the doctrine of the Kyle case, that, under the allegation of performance, proof of a waiver by defendant was admissible. The proof was certainly admissible when the plaintiff, in reply to the matter of defence set up in the answer, pleaded the fact of waiver, which was not a departure. (2) It is next objected to the admission of this proof) that, by the provisions of the contract of policy, no [111]*111waiver could arise unless the same had been indorsed in writing on the policy by the company. Reliance ior this extreme proposition is placed on the usual provision in such policies, requiring a distinct agreement, indorsed on the policy, to effect “a waiver of any printed or written condition or restrictions therein.” Such a provision as this has no application to the acts to be performed after the loss occurs. It has reference to those conditions and provisions of the policy which form a part of the contract of insurance, essential to make it a binding contract between the parties. Van Allen v. Ins. Co., 4 Hun, 413; Ins. Co. v. Ins. Co., 36 Md. 102; Rokes v. Ins. Co., 51 Md. 512; Whited v. Ins. Co., 76 N. Y. 418.
III. The only remaining question of importance is, were the facts in evidence sufficient to warrant the court in submitting the issue of a waiver to the jury % A waiver is a mixed question of law and fact. Each case must necessarily depend much upon its own peculiar circumstances and surroundings. It is a question of intention, and a fact to be determined by the triers of fact. Ehrlich v. Ins Co., 88 Mo. 249; Drake v. Ins. Co., 3 Grant [Pa.] 325; Witherell v. Ins. Co., 49 Me. 200. ‘Where there is any evidence as to the authority of the agent to act in the premises, and of an actual waiver of condition on the part of the agent, it is for the jury; and though a waiver must be intentional and clearly proven, the sufficiency of the evidence relating thereto is for the jury.” Ins. Co. v. Schollenberger, 44 Pa. St. 259. Wood on Insurance (sec. 496) lays down the general rule to be, that: “When the insurer, knowing the facts, does that which is inconsistent with its inten,tion to insist upon a strict compliance with the conditions precedent of the contract, it is treated as having waived their performance, and the assured may recover without proving performance, and that, too, even though the policy provides that none of its conditions shall be waived except by written agreement. •* * * The production of proofs of loss, or defects therein, [112]*112may be'waived, and such waiver maybe implied from what is said or done by the insurer.” This rule applies as well to the absence of any proof of loss as to defective proofs. Wood on Ins., sec. 419% As such preliminary proofs are for the sole benefit of the insurer, as a means of enabling it to ascertain the character and extent of the loss, there can be no reason why it may not either waive, in toto, the furnishing of this proof, or extend the time for making the same. As said in Rokes v. Ins. Co., supra: “Estoppel, as an element in connection with a waiver of preliminary proofs of loss, means where the insurer, knowing that the proofs have-not been furnished within time, so bears himself thereafter, in relation to the contract, as fairly to lead the assured to believe that he still recognizes the policy to-be in force and binding upon him.”
What does the bill of exceptions disclose in this case? On receipt of the notice of the fire and the destruction of the property insured, the company at once replied that the matter would be attended to so soon as its adjusting agent, who was then absent, returned. This indicated to the assured that an adjuster would come upon the grounds to satisfy himself of the-loss, etc. So the plaintiff waited until May, nearly two months, when he again wrote the company. To this it replied as follows:
“ State Insurance Co., Des Moines, la. } ‘ ‘ Home Office, May 29,1886. [
“T. GL Okey, Humansville, Mo.,—
“Dear Sir: Your favor of the fifteenth inst. has-been received and noted. The papers in your case have been in the hands of our adjuster for a long time, but he has had so much to do that he has not been able to reach you. There is no intentional delay in this matter, we assure you, as we are as anxious to have the matter receive attention as any one.
“Yours truly,
“ J. C. Cummins, Sec’y.” _
[113]*113The time for. making the .preliminary proofs of loss was then about to expire. No intimation is made in this letter that they were required, but the whole tenor of the letter was such as to create the impression that the only obstacle in the way of an immediate adjustment was the other pressing engagements of the adjuster, and that he would come upon the ground and adjust the loss. Within three weeks thereafter the adjusting agent did come, and make the investigation. The sixty days for making the proofs had then expired. The plaintiff testified that the agent made no demand of proofs. He inquired into the origin of the fire, and “made some estimates on the building, and asked me (the plaintiff) about the cost of evaporator, and said he had no doubt it was an honest loss, and said he would give me a sight draft on the company for three hundred dollars, if I would settle.” In the next interview plaintiff offered to accept three hundred and fifty dollars. “When he came he said nothing about making a sworn statement of the loss, but when he went away he said I would have to make an affidavit before a justice of the peace, and have to sign some papers before it could be settled.” The plaintiff further testified that, at this conversation, he advised the agent of the fact that his policy of insurance had been deposited with a neighbor for safe keeping, who had it locked up, and was then in the state of Texas. The agent thereupon told him they could settle without the policy if plaintiff would sign some papers before a justice of the peace. The agent offered three hundred dollars, and they disagreed only as to the additional fifty dollars demanded by the plaintiff. Prom this it is plain that the only matter at issue between the parties was as to the value of the property lost. There was no question as to the thing destroyed, of the fact or integrity of the loss. We do not say that these facts, separately considered, would constitute such a waiver as that the court might, as matter of law, declare them such, but they certainly were, under the authority of Noonan v. [114]*114Ins. Co., 21 Mo. 90, sufficient to warrant the submission of tliem to the opinion of the jury. In Rathhbone v. Ins. Co., 31 Conn. 193, it was held that where the general agent of the insurance company, acting in the matter of the particular loss, stated to the assured that it was only the quantity and value of the property destroyed the company disputed, it was held, not only that the evidence was admissible, but that it was important, as going to prove a waiver by the company of all defects in the proofs. There is in the character of the property in question a special reason why the company was not insisting on the presentation by plaintiff of a particular account of the loss. The property consisted of a single frame house, valued at only one hundred dollars, and -one evaporator therein. This was all the policy called for. When the adjusting agent was going on the ground why require a statement of the loss ? He could see it; .and being on the ground he could satisfy himself in the ■ neighborhood of the circumstances of the fire. When, .after the prescribed time for furnishing proofs had passed, as from the very inception of the claim, the defendant was treating with the plaintiff merely as to the value of the property, never intimating the necessity or ■expectation of any formal proofs of the loss, had the plaintiff, on the day of the offer of the three hundred dollars in settlement, sued the company, would it not :savor somewhat of “ sticking to the letter that killeth” to permit the company to fall back on the absence of the formal proofs of loss called for in the policy ? And if, as a matter of law and fact, the company had then waived the right to invoke the condition it was gone forever. A right of this character once waived can never be revived without the consent of the other party. It is true the agent testified that, in a few days thereafter, he sent the plaintiff a letter in which he proposed to replace the evaporator with a second-hand one, or to allow seventy dollars therefor, and the value of the house. But plaintiff says he never received any such letter, and there is no proof that he did. Then, in a letter written by this [115]*115•agent in August following, lie for the first time gave out any intimation of a purpose to require proofs of loss, and then only as a threat to compel compliance on plaintiff ’s part with his terms of settlement. It was for the jury to say, from all these facts and circumstances, whether or not the defendant did not intentionally waive its right to insist upon the preliminary proofs of loss. This issue was sharply, and with unusual perspicuity, put to the jury by the instructions of the court. We are concluded by their verdict.
IV. There was question made at the trial as to whether this action was brought within six months after the loss occurred, as required by the terms of the policy. It has not been pressed on this appeal; and we do not discover that it ■ has any basis of fact to rest upon.
The other judges concurring, the judgment of the circuit court is affirmed.