Napton, J.,
delivered the opinion of the Court.
For the sake of convenience, I will consider the questions, presented by the record under three principle heads; first, the sufficiency of the notice; second, the proofs of loss; and third, the instructions on the questions of false swearing and the plaintiffs participation in the arson.
1. The declaration averred that notice in writing wasforthiuith given to the Company, according to the stipulations in the 9th condition of the policy. The proof was, that the fire occurred on the first of April and the notice was given on the fifth. The first instruction of the Cou.t was, that the notice must be given with due and reasonable diligence under all the circumstances of the case. The acts required to be performed by the assured are well understood to be conditions precedent, without the performance of which, the plaintiff cannot recover. An averment of the performance is therefore necessary, and the proof must of' course sustain the averment. What, then, is meant by the word forthwith, as used in the 9th condition of the printed proposals? It cannot mean, that no interval is to elapse between the time of the fire and the giving of the notice — nor can it mean that an unreasonable or unnecessary delay would be tolerated. The construction given to this term in Inman vs. Western F. I. Co. (12 Wendell, 452,) appears to be a reasonable one, and differs in no respect material from the doctrine advanced in the first instruction. Forthwith means without unnecessary delay. The notice must be given with due diligence under the circumstances of the case. The averment in the declaration, that notice was given forthwith, is therefore equivalantto an averment that the notice was given with due diligence under the circumstances of the case, and it was only necessary that the proof should sustain the averment. There is no material difference between the instruction as given by the court and the first instruction asked by the defendant. They were both erroneous in leaving to the jury the question of due diligence, but had the issue been found under either or both of these instructions, this error would not have [290]*290been prejudicalto the judgment, if the facts on the record would authorize the finding.
But the court did not leave the question in this position, but declared to the jury in the second instruction, that if the Company made no objection to receiving the notice, or did not object to it because it was not given in time, and employed counsel to attend to the taking of the proofs of loss, these facts amounted to a waiver on the part of the Company of any objection to the notice, either as to its form, or the time it was given-This instruction, it is manifest, absolved the jury altogether from the necessity of determining upon the question, as to the diligence of the plaintiff. The first instruction was therefore rendered a mere abstraction,— for, if the Company received the notice and acted under it, the second instruction rendered unnecessary all enquiry into the diligence of the plaintiff in giving it. The' court extended the doctrine of waiver, which has been applied to the sufficiency of the preliminary proofs, to the notice. There is no doubt abundance of authority to sustain the doctrine, that formal defects in the proofs of the loss may be waived by the conduct of the underwriters. The doctrine is reasonable in itself, and necessary to protect the assured against mere technical obstructions to a recovery, in other respects just and proper. If the formal proofs of interest and loss are defective, it is but fair that the Company should apprize the assured of their objections. Such defects might be cured, if the party was apprized of them. ■ It would therefore be a virtual deception practised on the assured, if the underwriters should be permitted to receive these papers without objection, and after placing their objections to paying the insurance upon other grounds, turn round at the trial, and attempt to avoid their liabilities by technical objections to the proofs furnished them. But the want of a timely notice is another matter. Whether the Company are silent, or make objections, cannot alter the right of the parties. If the notice is too late, there is an end to the mattér. The want of such a notice cannot be supplied. Of what avail would it be to the assured to be told that the notice was insufficient? that it was too late ? How could the silence of the Insurance Company be construed as an admission that the notice was in time ? It was not the duty of the Company to make any formal objection to the want of notice. It was made the duty of the assured to give the notice, and neither silence on the part of the Company, or positive objections, would alter its character or sufficiency.
In the case of McMasters & Bruce vs. the West. Ins. Co. (25 Wend., 379,) the Judge submitted to the jury two questions; first, whether there [291]*291had been an unreasonable delay in giving the notice; and second, whether the Insurance Company had by their acts waived the preliminary proof.— In that case, the fire occurred on the first of July and the notice was not given until the 13th; but it appeared that negotiations had been on foot between the two parties from the time of the fire. The question of delay was not confounded with the waiver of preliminary proofs. The jury passed upon both questions, and although the question of diligence was considered one of law, when the facts were found or agreed upon, yet the appellate court regarded the verdict of the jury under such instructions as special, and proceeded to determine the case accordingly.
I am not willing to say that the notice in this case was not in time. The delay was so incondsiderable that very slight circumstances would be sufficient to excuse it. Courts have uniformly given a liberal construction to these conditions in policies of insurance. It would be going too far to say that a notice given in four days after the fire would, under any circumstances, constitute a notice forthwith, within the meaning of the 9th condition. There were, however, facts in evidence which might have satisfactorily accounted for the delay in this case. The plaintiff received an injury, either at the fire, about which the present controversy has arisen, or some other fire happening at that time, and was confined for several days to his house. This circumstance alone might make the delay a reasonable one, and the fact that the Company acted under the notice, would be evidence that it had been productive of no inconvenience or injury to them. But the jury did not pass upon the facts, on this view of the case. The court told the jury that the silence or failure to object, was an absolute waiver of defects in the notice, both as to time and form. Upon this construction of the law, a failure to give notice for six months would not affect the rights of the assured, unless the underwriters should positively refuse to receive the notice or take some other unequivocal steps to indicate their determination to resist the payment on this ground. Such a doctrine would be in fact implying a new contract between the parties, from the mere inaction or silence of one party.
2. The third and fourth instructions, so far as they related to defects in the proofs of loss, were correct. Formal defects in the preliminary proof, which may be supplied, if objections are made by the underwriters in time, may well be regarded as waived, where the underwriters put their refusal to pay distinctly on some other ground.
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Napton, J.,
delivered the opinion of the Court.
For the sake of convenience, I will consider the questions, presented by the record under three principle heads; first, the sufficiency of the notice; second, the proofs of loss; and third, the instructions on the questions of false swearing and the plaintiffs participation in the arson.
1. The declaration averred that notice in writing wasforthiuith given to the Company, according to the stipulations in the 9th condition of the policy. The proof was, that the fire occurred on the first of April and the notice was given on the fifth. The first instruction of the Cou.t was, that the notice must be given with due and reasonable diligence under all the circumstances of the case. The acts required to be performed by the assured are well understood to be conditions precedent, without the performance of which, the plaintiff cannot recover. An averment of the performance is therefore necessary, and the proof must of' course sustain the averment. What, then, is meant by the word forthwith, as used in the 9th condition of the printed proposals? It cannot mean, that no interval is to elapse between the time of the fire and the giving of the notice — nor can it mean that an unreasonable or unnecessary delay would be tolerated. The construction given to this term in Inman vs. Western F. I. Co. (12 Wendell, 452,) appears to be a reasonable one, and differs in no respect material from the doctrine advanced in the first instruction. Forthwith means without unnecessary delay. The notice must be given with due diligence under the circumstances of the case. The averment in the declaration, that notice was given forthwith, is therefore equivalantto an averment that the notice was given with due diligence under the circumstances of the case, and it was only necessary that the proof should sustain the averment. There is no material difference between the instruction as given by the court and the first instruction asked by the defendant. They were both erroneous in leaving to the jury the question of due diligence, but had the issue been found under either or both of these instructions, this error would not have [290]*290been prejudicalto the judgment, if the facts on the record would authorize the finding.
But the court did not leave the question in this position, but declared to the jury in the second instruction, that if the Company made no objection to receiving the notice, or did not object to it because it was not given in time, and employed counsel to attend to the taking of the proofs of loss, these facts amounted to a waiver on the part of the Company of any objection to the notice, either as to its form, or the time it was given-This instruction, it is manifest, absolved the jury altogether from the necessity of determining upon the question, as to the diligence of the plaintiff. The first instruction was therefore rendered a mere abstraction,— for, if the Company received the notice and acted under it, the second instruction rendered unnecessary all enquiry into the diligence of the plaintiff in giving it. The' court extended the doctrine of waiver, which has been applied to the sufficiency of the preliminary proofs, to the notice. There is no doubt abundance of authority to sustain the doctrine, that formal defects in the proofs of the loss may be waived by the conduct of the underwriters. The doctrine is reasonable in itself, and necessary to protect the assured against mere technical obstructions to a recovery, in other respects just and proper. If the formal proofs of interest and loss are defective, it is but fair that the Company should apprize the assured of their objections. Such defects might be cured, if the party was apprized of them. ■ It would therefore be a virtual deception practised on the assured, if the underwriters should be permitted to receive these papers without objection, and after placing their objections to paying the insurance upon other grounds, turn round at the trial, and attempt to avoid their liabilities by technical objections to the proofs furnished them. But the want of a timely notice is another matter. Whether the Company are silent, or make objections, cannot alter the right of the parties. If the notice is too late, there is an end to the mattér. The want of such a notice cannot be supplied. Of what avail would it be to the assured to be told that the notice was insufficient? that it was too late ? How could the silence of the Insurance Company be construed as an admission that the notice was in time ? It was not the duty of the Company to make any formal objection to the want of notice. It was made the duty of the assured to give the notice, and neither silence on the part of the Company, or positive objections, would alter its character or sufficiency.
In the case of McMasters & Bruce vs. the West. Ins. Co. (25 Wend., 379,) the Judge submitted to the jury two questions; first, whether there [291]*291had been an unreasonable delay in giving the notice; and second, whether the Insurance Company had by their acts waived the preliminary proof.— In that case, the fire occurred on the first of July and the notice was not given until the 13th; but it appeared that negotiations had been on foot between the two parties from the time of the fire. The question of delay was not confounded with the waiver of preliminary proofs. The jury passed upon both questions, and although the question of diligence was considered one of law, when the facts were found or agreed upon, yet the appellate court regarded the verdict of the jury under such instructions as special, and proceeded to determine the case accordingly.
I am not willing to say that the notice in this case was not in time. The delay was so incondsiderable that very slight circumstances would be sufficient to excuse it. Courts have uniformly given a liberal construction to these conditions in policies of insurance. It would be going too far to say that a notice given in four days after the fire would, under any circumstances, constitute a notice forthwith, within the meaning of the 9th condition. There were, however, facts in evidence which might have satisfactorily accounted for the delay in this case. The plaintiff received an injury, either at the fire, about which the present controversy has arisen, or some other fire happening at that time, and was confined for several days to his house. This circumstance alone might make the delay a reasonable one, and the fact that the Company acted under the notice, would be evidence that it had been productive of no inconvenience or injury to them. But the jury did not pass upon the facts, on this view of the case. The court told the jury that the silence or failure to object, was an absolute waiver of defects in the notice, both as to time and form. Upon this construction of the law, a failure to give notice for six months would not affect the rights of the assured, unless the underwriters should positively refuse to receive the notice or take some other unequivocal steps to indicate their determination to resist the payment on this ground. Such a doctrine would be in fact implying a new contract between the parties, from the mere inaction or silence of one party.
2. The third and fourth instructions, so far as they related to defects in the proofs of loss, were correct. Formal defects in the preliminary proof, which may be supplied, if objections are made by the underwriters in time, may well be regarded as waived, where the underwriters put their refusal to pay distinctly on some other ground. Nor do I perceive any objection to such evidence on the ground that the pleadings involve a different issue. It is merely evidence of a performance. It is not the case [292]*292of a substitution of a new contract for the 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.
In the numerous cases cited, in which this doctrine of waiver has been distinctly asserted, I do not discover that any objection has been suggested to the admissibility of such evidence on account of the form of the pleadings and the character of the issues made. It is true, that the actions are usually assumpsit, and the cases tried on the general issue, but an averment of the performance of a condition precedent is as sesential in the action of assumpsit as in covenant.
In the case of McMasters & Bruce vs. Westchester M. I. C., heretofore cited, the pleadings are not stated, but it is to be inferred, that the declaration was in the usual form, and the Judge left it with the jury to say, whether the acts of the underwriters had not waived any objections to defects in the preliminray proof. In the case of Etna Fire Ins. Cc. vs. Tyler, (in the Court of Errors of N. York,) the Chancellor declared the law to be well settled, that defects in the proofs of loss might be waived by the silence of the underwriters, but suggested that the question of waiver had not been submitted to the jury. “The difficulty is,” he observed in the course oí his remarks on the point, “that the question of waiver was not raised at the circuit, so as to give the underwriters an apportunity of showing that they had in fact insisted upon the want of a proper certificate as a necessary part of the preliminary proofs — the court having decided that the certificate produced was sufficient.”
The objection of the Chancellor was, not to any defects in the declaration, excluding proof of waiver, but that the circuit Judge held the certificate sufficient, and never permitted the jury to pass upon the question of waiver. It is clearly inferrable, that, in his opinion, no averment of waiver In the declaration was necessary or would have been proper. In the case of Davis vs. N. H. Ins. Co., (7 Cow. R., 462,) the plaintiff averred a performance of the 9th condition of the policy, and the proof was that the President of the Company waived a compliance. The court held, that the President had no authority to do such an act. By the act of incorporation, the President had no such power, and no such power had been given by any bye-law. The company therefore were not considered bound. It was admitted, however, that if the Board of Directors had dispensed with tiie condition, the corporation would have been bound.— [293]*293Now, it is obvious, that the investigation of the question of authority, was totally unnecessary, if, under the pleading, a waiver of any sort was inadmissible. The case of Martin vs. Fishing Ins. Co., 20 Pick., 389, is another case tending very strongly to show the opinion of the profession on this point. That was an action of assumpsit on a policy. No preliminary proof was made, except an abandonment, which was not accepted, and a demand of payment of the loss, and a written agreement of reference, and the testimony of one of the plaintiff’s witnesses that the defendant had always resisted the right of recovery on account of the unseaworthiness of the vessel. The Supreme Court said, “The court very properly left it to the jury to determine, whether the defendants had not waived their right to any further proof, or whether it was not evidence that they had such proof.”
In these cases, the allegations in the declaration are not stated, but it is to be presumed, that if there had been any variation from the usual form, that fact would have appeared. The evidence of a waiver was uniformly admitted under the general issue in assumpsit, and the declaration in this special action on the case must necessarily contain the same averments which would be essential in an action of covenant brought upon a similar instrument, under seal.
3. The principal defence in this case was based upon the alleged/aise swearing of the plaintiff, in his preliminary proofs of loss, and his alleged participation in the burning of his factory. To sustain the latter charge, it was obviously essential that the first should be established. Fors it would require a stretch of credulity, not ordinarily to be found, to ber convinced that the plaintiff set fire to a building containing nearly twelve thousand dollars worth of his property, when the insurance only covered six thousand dollars. The main controversy, then, must have been as to the truth of the plaintiff’s statement of the amount and value of the property in the building at the time of the fire, and his statement that “he was unable to give a more particular description, for the reason that all his books and accounts were consumed in the building.” Accordingly we find on the record, that a mass of testimony was brought to bear upon both these points. It was proper that the instructions upon these points should be clear and satisfactory. The instructions given, at the plaintiff’s instance, on the question of false swearing, have already been copied; their propriety is not questioned. The only objection that could be urged to them is, perhaps, that they are too abstract in their character, and do not, with sufficient precision, direct the jury to the exact matters controverted. But the instructions asked by the defendant were also [294]*294given. It is stated that they were modified, but to what extent does not appear. We must presume that the alterations were immaterial. The 12th instruction asked by the defendant was refused. That instruction directed the jury to find the plaintiff guilty of false swearing, if they believed from the evidence that all the plaintiff’s books and accounts were not consumed in the alleged fire, or that the plaintiff had no reason to believe that such was the fact. The plaintiff, in his proofs of loss, to which he made oath, stated that he could not give a more particular description of the property consumed, for the reason that all his books and accounts were consumed in the fire. The plaintiff may have intended to assert that all his books and accounts, which at the time of the fire were in the factory, had been consumed, and therefore no moral guilt could attach to this statement, nor any fraud be perpetrated on the Company, if the statement was substantially true, although some of the plaintiff’s books and accounts, kept at another place, were not consumed. Still, it is obvious, that the statement of the plaintiff carries with it the implication that the books and accounts which had been consumed in the fire had a tendency to explain the amount of prcp'erty contained in the building; and if they had no such tendency, the statement was calculated to create a false impression. There was evidence on both sides of the question; of which the jury were the judges. The 12th instruction, as it was asked, was objectionable; it might have been given with the modification we have suggested.
The instruction in relation to interest was erroneous. The insurance was not payable until sixty days after notice and proof of loss..
The case must be remanded, because of the error committed by the court on the question of notice. The facts have not been passed upon by a jury in such a shape as to enable us to determine, as a question of law, whether there was due diligence or not. We have not ventured to form, much less to express, any opinion of the case upon its merits. We have had time barely to glance over the volumnious mass of testimony spread upon the record. The case is an important one, not only because of the considerable amount of property involved, but because it involves imputations upon the integrity of the plaintiff, of the most serious character. If the imputations be unfounded, the plaintiff will lose nothing by delay — for truth, though sometimes slow in its progress, rarely fails to overtake error in the long run. If they are true, it is but right that the Insurance Company should have another opportunity of establishing them, there having been a misdirection at the former trial.
The other Judges concurring,
the judgment is reversed and the cause remanded.