Napton, J.,
delivered the opinion of the court.
The record of this case presents several questions, which we shall notice in order. 1, Was the notice of loss in time? 2, Was the statement of loss filed on the 9th June, sufficiently particular? 3, Was the plaintiffs failure to submit to an examination on the 19th June, as required by the company, a bar to his claim? 4, Were the certificates of Butler and Kretchmar, and the other preliminary proofs filed on the 29th October, a compliance with the conditions of the policy, and if [231]*231not, had these conditions been waived. 5th. Could the action be brought within less than sixty days after completion of preliminary proofs and adjustments loss? It was doubtless on one of these grounds that the non-suit was ordered, and as they are all relied on here, they will each be examined.
1, This policy requires notice of loss to be given forthwith; and this expression is understood to mean with due diligence under the circumstances of the case. The written notice was given twenty days after the fire. There was proof, that the plaintiff called at the office of the company, a day or two after'the fire, and told them “he was burnt out;” that an agent of the company was seen examining the ruins, before the fire fire was extinguished — that when the written notice was handed in, the plaintiff was informed that the pressure of business was such, that his case could not be immediately attended to, but would receive attention in its turn. Subsequently, the claim was taken up and examined — various interviews between the principal agent of the company and the plaintiff were had relative to the claim, and various examinations were made of the plaintiff’s books, which resulted in an offer on the part of the company to adjust the loss at a sum considerably less than that claimed by the plaintiff.
A distinction was taken in Kyle’s case (11 Mo. R. 289) between the notice of loss and the preliminary proofs, which we are inclined to think was not well considered. It seems to be intimated that there could be no waiver of the notice, at all. It is very difficult to lay down general rules on a question of this kind which will be applicable to varied circumstances, and it is better that such case should stand upon its own peculiar faqts. We are not disposed to say, that in all cases, and under all circumstances, the mere reception by the company of a notice, without objection at the time, and the additional fact of directly proceeding to an investigation of the claim, would be conclusive evidence, that the notice was a timely one and that the company waived any objections to the claim on this ground. It might be, that the importance of an earlier notice, would be for the first time ascertained in the course of the investigations, and if it was then insisted on as a bar, we could hardly infer a previous waiver.
In the present case no such difficulties occur. The plaintiff files his notice about twenty days after the fire (to say nothing of the verbal notice) and he is told substantially — “Your claim cannot be examined at this moment — you will have to wait a few days — the great pressure of business occasioned by the fire is such that months will scarcely be sufficient to adjust all the losses.” Is it not absurd to talk about a notice [232]*232being too late, when the company for whose benefit it is given, declares in effect that it is too early for their convenience — when it is subsequently taken up and investigated, no objections at any time made to it for want of being in time, and an ultimate offer to pay a sum which the company believed sufficient to cover the actual loss ?
We cannot suppose, that it was upon this ground, the nonsuit was ordered.
2. The next question relates to the sufficiency of the proofs of loss, offered on the 9th June. These proofs were as follows :
First. A list of military goods, music and musical instruments saved from the fire with their value at invoice prices, the total of which is $6919 33. Accompanying this list, was a 'certificate of A. Osgood, dated May 25, 1849, stating that he had assisted Nathl. Phillips in making the forgoing inventory, and had occasional opportunity of referring to his original invoices, and was satisfied that it was a correct account of the stock saved. No deduction being made for injuries in removal, which he thought considerable.
Second. A statement in these words : “ Mr. Phillips’ last inventory showed his stock at cost to be over $18,000 — he believes at the time of the fire it was not more than $1500 less, say $16,600. $16,600
Amount of stock saved at cost.$6,919 33
Ón which damage is not less than 10 percent., 591 93 $5,317 40
$11,182 60”
Third. A statement as follows: “ N. Phillips purchased from December 1, 1847, to May 17, 1849, subsequent to last inventory — the amount of which is $15,523 98. Appended to this is the following: “N. Phillips’ last inventory consumed by fire, as shown by his statement rendered and which is hereby proved by the clerk who assisted in taking it, was $18,000 — the above is the amount of purchases subsequent to that up to the 4th May, as his journal will show, and a part of his original invoices saved will prove.”
Fourth. A certificate of G. J. Murray, proving that the last inventory was $18,000. A certificate of N. Phillips, taken before a magistrate, stating that the foregoing statement is just and true, that the same has been made by a certificate and diligent examination of all books and papers appertaining to the subject of statements, namely, the stock purchased and the goods on hand, and he, the said Phillips, verily believed the said statement to be correct and true. Another certificate of Osgood is added, to the same purport, and an additional certificate of Phillips as to the causes of the fire, &c.
[233]*233The most serious objection to this statement is the absence of any account of sales from the date of the inventory in 1847 to the fire. The stock, at the date of the inventory, is stated to have been $18,000 —the purchases since then are estimated at $15,523 98 — and the stock on hand at the date of the fire is stated at $16,500. Without an account or estimate of the goods sold, it is impossible to arrive at the stock on hand at the time of the fire and this is omitted. It is true, that we may infer from the statement, that the plaintiff had sold since December 1847, when the stock was $18,000, an amount sufficient to cover all the additional purchases (which were $5,523 98) and as much more as would reduce the stock to $16,500. But as the plaintiff had put in the estimate of his purchases since the inventory, he ought, of course, to have added the sales and a plain authenticated calculation would then have shown the actual amount of goods on hand at the time of the fire. Without this, we are left to conjecture, by what means he arrived at the result, whether it was merely conjecture or founded on data not likely to mislead. It may be, that the books which contained the entries of sales, were burned or lost — or it may be, that no such books were kept. If so, this could have been stated and ought to have been stated.
But it is unnecessary to dwell on this defect of proof. The object of such proof is to lead to a satisfactory adjustment of the loss, and if the proofs are defective, it is the duty of the underwriters to point out the, defects, that they may be remedied.
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Napton, J.,
delivered the opinion of the court.
The record of this case presents several questions, which we shall notice in order. 1, Was the notice of loss in time? 2, Was the statement of loss filed on the 9th June, sufficiently particular? 3, Was the plaintiffs failure to submit to an examination on the 19th June, as required by the company, a bar to his claim? 4, Were the certificates of Butler and Kretchmar, and the other preliminary proofs filed on the 29th October, a compliance with the conditions of the policy, and if [231]*231not, had these conditions been waived. 5th. Could the action be brought within less than sixty days after completion of preliminary proofs and adjustments loss? It was doubtless on one of these grounds that the non-suit was ordered, and as they are all relied on here, they will each be examined.
1, This policy requires notice of loss to be given forthwith; and this expression is understood to mean with due diligence under the circumstances of the case. The written notice was given twenty days after the fire. There was proof, that the plaintiff called at the office of the company, a day or two after'the fire, and told them “he was burnt out;” that an agent of the company was seen examining the ruins, before the fire fire was extinguished — that when the written notice was handed in, the plaintiff was informed that the pressure of business was such, that his case could not be immediately attended to, but would receive attention in its turn. Subsequently, the claim was taken up and examined — various interviews between the principal agent of the company and the plaintiff were had relative to the claim, and various examinations were made of the plaintiff’s books, which resulted in an offer on the part of the company to adjust the loss at a sum considerably less than that claimed by the plaintiff.
A distinction was taken in Kyle’s case (11 Mo. R. 289) between the notice of loss and the preliminary proofs, which we are inclined to think was not well considered. It seems to be intimated that there could be no waiver of the notice, at all. It is very difficult to lay down general rules on a question of this kind which will be applicable to varied circumstances, and it is better that such case should stand upon its own peculiar faqts. We are not disposed to say, that in all cases, and under all circumstances, the mere reception by the company of a notice, without objection at the time, and the additional fact of directly proceeding to an investigation of the claim, would be conclusive evidence, that the notice was a timely one and that the company waived any objections to the claim on this ground. It might be, that the importance of an earlier notice, would be for the first time ascertained in the course of the investigations, and if it was then insisted on as a bar, we could hardly infer a previous waiver.
In the present case no such difficulties occur. The plaintiff files his notice about twenty days after the fire (to say nothing of the verbal notice) and he is told substantially — “Your claim cannot be examined at this moment — you will have to wait a few days — the great pressure of business occasioned by the fire is such that months will scarcely be sufficient to adjust all the losses.” Is it not absurd to talk about a notice [232]*232being too late, when the company for whose benefit it is given, declares in effect that it is too early for their convenience — when it is subsequently taken up and investigated, no objections at any time made to it for want of being in time, and an ultimate offer to pay a sum which the company believed sufficient to cover the actual loss ?
We cannot suppose, that it was upon this ground, the nonsuit was ordered.
2. The next question relates to the sufficiency of the proofs of loss, offered on the 9th June. These proofs were as follows :
First. A list of military goods, music and musical instruments saved from the fire with their value at invoice prices, the total of which is $6919 33. Accompanying this list, was a 'certificate of A. Osgood, dated May 25, 1849, stating that he had assisted Nathl. Phillips in making the forgoing inventory, and had occasional opportunity of referring to his original invoices, and was satisfied that it was a correct account of the stock saved. No deduction being made for injuries in removal, which he thought considerable.
Second. A statement in these words : “ Mr. Phillips’ last inventory showed his stock at cost to be over $18,000 — he believes at the time of the fire it was not more than $1500 less, say $16,600. $16,600
Amount of stock saved at cost.$6,919 33
Ón which damage is not less than 10 percent., 591 93 $5,317 40
$11,182 60”
Third. A statement as follows: “ N. Phillips purchased from December 1, 1847, to May 17, 1849, subsequent to last inventory — the amount of which is $15,523 98. Appended to this is the following: “N. Phillips’ last inventory consumed by fire, as shown by his statement rendered and which is hereby proved by the clerk who assisted in taking it, was $18,000 — the above is the amount of purchases subsequent to that up to the 4th May, as his journal will show, and a part of his original invoices saved will prove.”
Fourth. A certificate of G. J. Murray, proving that the last inventory was $18,000. A certificate of N. Phillips, taken before a magistrate, stating that the foregoing statement is just and true, that the same has been made by a certificate and diligent examination of all books and papers appertaining to the subject of statements, namely, the stock purchased and the goods on hand, and he, the said Phillips, verily believed the said statement to be correct and true. Another certificate of Osgood is added, to the same purport, and an additional certificate of Phillips as to the causes of the fire, &c.
[233]*233The most serious objection to this statement is the absence of any account of sales from the date of the inventory in 1847 to the fire. The stock, at the date of the inventory, is stated to have been $18,000 —the purchases since then are estimated at $15,523 98 — and the stock on hand at the date of the fire is stated at $16,500. Without an account or estimate of the goods sold, it is impossible to arrive at the stock on hand at the time of the fire and this is omitted. It is true, that we may infer from the statement, that the plaintiff had sold since December 1847, when the stock was $18,000, an amount sufficient to cover all the additional purchases (which were $5,523 98) and as much more as would reduce the stock to $16,500. But as the plaintiff had put in the estimate of his purchases since the inventory, he ought, of course, to have added the sales and a plain authenticated calculation would then have shown the actual amount of goods on hand at the time of the fire. Without this, we are left to conjecture, by what means he arrived at the result, whether it was merely conjecture or founded on data not likely to mislead. It may be, that the books which contained the entries of sales, were burned or lost — or it may be, that no such books were kept. If so, this could have been stated and ought to have been stated.
But it is unnecessary to dwell on this defect of proof. The object of such proof is to lead to a satisfactory adjustment of the loss, and if the proofs are defective, it is the duty of the underwriters to point out the, defects, that they may be remedied. It does not appear, that any such objections were made, although it is probable that this defect was one of the causes that induced the company to require the plaintiff to submit to a personal examination, under oath, and to bring forward his books and papers, and this leads us to a consideration of the next point, which is doubtless the principal cause of this controversy.
3. One of the conditions of the policy made it incumbent on the plaintiff to produce his books of account and other proper vouchers, and submit to an examination under oath, if required by the agent of the company, and answer all questions touching the subject matter of the insurance which might be propounded. The same article declared that until such proofs, declarations and certificates were produced and such examination submitted to, if required, the loss was not payable. On the 19th June the agent of the defendant notified the plaintiff in writing that he must produce his books and papers and submit to an examination on oath. The plaintiff failed to submit to such examination, at the time required and the question is whether such failure is fatal to his daim. There can be no doubt of the right of the company to insist on ■this compliance with the terms of the policy, and if the refusal of the [234]*234plaintiff was without excuse or justification, there is certainly an end to his claim.
There is no dispute as to the facts in relation to this matter, and we may, in considering the propriety of the nonsuit ordered, assume them to have been substantially these : The cholera was on the 19th June epidemic in St. Louis. The plaintiff’s child had been attacked on the 6th with this disease, had recovered, but occasionally relapsed, and medical advice was given to remove the child to another climate. The plaintiff’s wife was also indisposed. Under these circumstances a trip to the east was resolved upon. On the evening of the 19th when the notice of the company was served, the plaintiff, with his wife and child, was in a carriage, on his way to the steamboat, which was about leaving that evening. The plaintiff disregarded the notice, proceeded to the boat with his family, traveled as far as Boston or its vicinity and did not return until the 12th September.
We are not called upon to determine, as a question of law, that the facts above stated constituted a legal excuse or justification to the conduct of the plaintiff. But we are unable to see how the court below could undertake as a matter of law to say that there was no sufficient apology for the plaintiff’s conduct. We cannot suppose that it was incumbent on the plaintiff to obey the requirements of the company, at an unreasonable time and under every condition of circumstances. The question, upon which this point must turn, is one of fact and intention, to some extent. Was the conduct of the plaintiff, in declining the examination at the time proposed, in good faith, for the purpose of rescuing his family and himself from the dangers of a raging pestilence — or was it a mere pretext to postpone an investigation until the chances of detecting fraud were diminished or destroyed? We should Be unwilling to say that a person should be compelled to risk life and health, and the lives of his family, at the forfeiture of so much as is here insisted on. Men are differently constituted in this respect — to some a pestilence presents no terror* — others again regard flight as no additional security against the disease. Some have not the means of escape, however much desired and others are content to abide the will of Providence, in the position where duty, or interest or necessity has placed them. If the plaintiff honestly deemed it necessary for the safety of his family, that he should remove from the city, it would scarcely accord with the dictates of humanity or justice to hold such removal a forfeiture of his policy.
We do not attach much importance to the fact, that the absence of the plaintiff was continued several weeks after the cessation of the [235]*235cholera as an epidemic. It is not to be expected that the plaintiff after incurring the trouble and expense of removing his family to the eastern states, would return on the very day or week of the abatement of the pestilence. Such a course would not be prudent or rational. Nor do we think it conclusive against his honesty, that he removed his family to a remote point, instead of some place in the neighborhood, beyond the reach of the disease and affording greater facilities for a speedy return. There may have been conveniences attending a sojourn at the point selected, arising from considerations not apparent to us, and but which, if explained, would readily be appreciated. The question at last is one of intention, and it is for the jury to say, after all the facts are before them, whether his avowed intention was the true one, and only one, and whether the absence was unreasonably protracted beyond the period necessary to carry out the avowed purpose of the trip.
4. When the plaintiff returned on the 12th of September, he appeared at the office of the company and offered to comply with the requisitions of their notice of the 19th June. The agent deferred an immediate answer to this offer — but on the following day informed him that he was too late — that his claim was fraudulent and would not be paid — that they waived none of their rights, but stood upon them all and insisted on a strict compliance with all the conditions of the policy.
The plaintiff filed at a subsequent day, additional statements and proofs, and among otheis, the certificates of two magistrates, Butler and Kretchmar, relative to the causes of the fire and the amount of loss, and the honesty of the claim. No notice was taken by the company of these papers. They had already advised the plaintiff, that their determination was not to adjust or pay the claim. It is now objected on the trial, that these additional papers filed in October, and after refusal of the company to adjust, are still defective — that the proofs of loss are not so particular as the policy requires — and that the certificates of the magistrates are not sufficient in form and in other respects objectionable.
We cannot see any propriety in such objections. The company put themselves on the refusal of the plaintiff to submit to an examination under oath on the 19th of June, as a complete bar to the claim. If they were right in this, there was an end of the matter, but if they mistook their rights on this point, their subsequent conduct clearly dispensed with additional proofs. Cui bona — for what purpose was the plaintiff to go over and perfect his prooí ? He is informed in writing, that the company had determined not to pay — that lawyers had been employed and they were prepared, as the agent observed “to give him [236]*236a good fight.” What difference could it make to the company, if the bundle of papers filed in their office in October, had been a bundle of blanks? The object of these preliminary proofs is to lead to an adjustment, to furnish the underwriters with all the information they may require to show the loss and its amount, but if they have determined not to adjust the claim, not to pay any part of it, of what avail can it be, for the insured to trouble himself further with perfecting his proofs ? How are the rights of this company affected by the fact that a notary public, an unnatur-alized foreigner, had his office fifty or one hundred yards nearer to the place of the fire than the two justices, Butler & Kretchmar, who signed the certificate ? These certificates are provided for in the policy, as well as all the other modes of proof, as a degree and form of evidence which by mutual agreement is to be regarded satisfactory to the underwriters, and sufficient to form the basis of a private adjustment. The underwriters have a right to insist upon it, if they will — but they may waive the whole of it. When they refuse to receive it or examine it and declare their determination‘not to pay, in any event, unless compelled by legal coercion, such conduct can be viewed in no other light than a waiver of the forms of proof provided for in the policy. It matters not, that they in terms say that they waive nothing, we look to their acts to ascertain whether there is a waiver. Any other construction of such acts as these, would lead to the grossest injustice. Let us suppose the certificates of the two magistrates, produced on this occasion, to be subject to the exception taken. These certificates are not required to be presented at any particular time. If objections had been made to them on the ground now indicated, it may be that the error could have been readily corrected. It may be, that the plaintiff could as readily have produced the certificate of Coste, the foreigner, who lived in the second story of a tenement in the vicinity of Phillips, as he did those of Butler & Kretchmar. But the plaintiff was not told of any such objection — he was not informed that the mode of proof was unsatisfactory or the certificates not such as the policy required — but he was informed, that his failure to answer interrogatories on the 19th June was the cause of the refusal of the company to pay. Upon this ground, and on this ground alone, the company rested their denial of compensation. Upon this ground they insisted that the matter was closed — that the plaintiff had forfeited all rights under his policy — that the advantages expected to be derived from an examination of his books and papers and of himself on oath on the 19th June could not be obtained by an examination at the period when he offered it, and consequently [237]*237they had closed the door to all chances of a private and amicable settlement between the parties.
This conduct and this language emphatically called upon the plaintiff to prove his claim in a court of justice, according to the forms and principles of the general law of the land and distinctly waived the forms and modes of proof which the policy, called for as a preliminary to a private adjustment.
5. That the 11th article of the policy says that “payment of loss should be made in sixty days after the loss shall have been ascertained and proved and the proof received at the office.” It is obvious that this clause applies to cases of an adjustment by the officer and to no other. Where the company refuse to adjust, a literal compliance with the article would prove a bar to suit at law. The loss in this case was not ascertained and the company refused to receive the proofs offered. There is no objection to the action on this ground.
We shall reverse the judgment and remand the case for trial. Judgment reversed.