The opinion of the court was delivered,
by Woodward, J.
Assenting fully to the main proposition of the plaintiff in error, that a policy of insurance, with all its clauses, conditions, and stipulations, is the law of the relation between insurers and the assured, by which their mutual rights and liabilities are to be defined and measured, we are, notwithstanding, unable to construe certain clauses of the policy now before us, in the manner suggested on the part of the plaintiff in error.
The provision which forbids an assignment of the policy without the knowledge and assent of the company is immaterial, for Helfenstein made no assignment and attempted to make none of his policy.
The fourth condition is said to have been violated by his sale of goods to Herb & Deppin. If he were suing for the value of the goods transferred to those purchasers, the doctrine of Finley v. The Lycoming Mutual Insurance Company, 6 Casey 311, would be decisive against him ; but the goods in respect of which he claims indemnity, were never sold or transferred to them or any one else. The policy was on a frame storehouse situate in the village of Treverton, and a stock of store goods within the [297]*297same. The storehouse was valued at $2000, and the merchandise at $1000.
Some months after the date of the policy, Helfenstein sold to Herb & Deppin all the goods on the lower floor of the store, and admitted them, on the 1st October 1856, to the possession of that part of the storehouse, for the purpose of making merchandise of the goods; but he retained all the goods on the upper floor, and these were proved to exceed in value the $1000 of insurance. The indemnity he claims is for the building and the goods on the upper floor. The question is whether he has forfeited his right to indemnity by failing to give notice of the partial sale to Herb & Deppin. The language of the fourth condition cannot fairly be applied .to forbid such a sale, because the policy was on merchandise, which is property not to be kept unchanged, but to be used for traffic and commerce. Assuredly the insurance company did not expect the merchant they were insuring would stop his sales or report to them every sale he made. If he lost a thousand dollars’ worth of goods in that store by fire, he is entitled to indemnity, without regard to any transfer, partial transfer, or change of title “ in other goods” which he may have had in the store at the date of the policy. He cannot and does not claim for the goods transferred to Herb & Deppin. The transfer to them does not impair his right to indemnity for the residue.
Nor can the words of the fourth clause be so construed as to make the admission of Herb & Deppin to a joint possession of the store building, a breach of covenant. Those words do not relate to the possession, but to the title. It is transfer or change of title in the property insured, which is forbidden. There was no transfer or change of title of the storehouse or of the goods for which plaintiff now claims indemnity. If the company meant to prevent a change of occupancy or custody, they should have stipulated against it. We see no more violation of this condition, by admitting Herb & Deppin to the possession of the lower floor of the store, than we should have seen in a change of clerks, porters, or watchmen by Helfenstein. Policies do sometimes forbid a change of tenants without notice, and for a very good reason, but this policy does not. The language of the fourth condition, applicable alike to the real and personal property, relates exclusively to changes of title, and has no reference to the possession. We satisfy those words fully, when we hold that in respect to the goods transferred to Herb & Deppin, Helfenstein could set up no claim, but that in respect to the untransferred portion of the goods and- the storehouse, his claim is unimpaired.
Now as to the next point of notice. The sixth condition of the policy binds persons sustaining loss by fire to give notice thereof in writing “forthwith” to the secretary of the company. [298]*298The fire occurred on Saturday, 4th of October. The same day, Ilelfenstein went to Sunbury to see Gray, the local agent, and through him to give notice to the company of the loss. Gray was not at home, and Ilelfenstein requested Mr. Dewart to give him notice as soon as he returned. Gray admits that he got the notice on Wednesday next after the fire, and he swore that he communicated it to the secretary by letter immediately. The secretary came down, says this witness, a day or two after I sent the letter up. I asked him if he was going to Treverton. He said it was not necessary to go; that I should state to Ilelfenstein to make out a list of his losses and send it up to the secretary, and it would be paid. I told him ho had better put it on paper. He put it on paper, and I handed it to Ilelfenstein first time he came up that I saw him. The secretary told me he would send Ulman down to give me instructions —that he was a travelling agent. Ulman came here about ten days after the fire. He said he had been in Treverton.”
The court submitted it to the jury to say whether the notice was in reasonable time, and they found that it was. The notice is to be forthwith and in writing, and is to be directed to the secretary. Ilelfenstein started the very day of the fire to communicate notice to the secretary. He had a right to do it through the local agent, and the letter of the agent was a sufficient compliance with that part of the rule which requires the notice to be in writing. But it was the fourth day after the fire that the agent communicated the notice. Was this in time ? We held, in Trask v. The State Insurance Company, 5 Casey 198, that eleven days was too long a delay, if not excused by circumstances. And again, in The Inland Insurance Company v. Stauffer, 9 Casey 402, that a delay of written notice for eleven days was not excused by a verbal notice to a director and an agent of the company. In the case of The State Mutual Fire Insurance Company v. John Roland, MS. of October Term 1860, under a policy similar to the present, a written notice by the agent of the company, sent to the secretary four days after the fire, at the instance of the assured, was held sufficient.
The doctrine deducible from these cases is, that notice is a condition precedent to the right of recovery, and where it is stipulated to be given forthwith, the condition imposes upon the assured due diligence under all the circumstances of the case. And this is the rule as given in Angelí on Insurance, § 231. The assured may be necessarily occupied a day or two after a fire in providing for his family, or for the safety of goods that have been rescued, and which the insurance company would have to pay for if not taken care of. It would be very unreasonable in such cases to construe the stipulation for notice forthwith so sharply as to make his prudent and proper conduct the ground [299]*299of denying him the stipulated indemnity. In the case of Edwards v. The Baltimore Fire Insurance Company, 8 Gill 176, the policy required the assured forthwith to give notice to the underwriters of any loss. The mail left the place of loss for Baltimore on Monday, Wednesday, and Friday. The fire took place on Friday night, and the assured did not give notice by mail till the next Wednesday.
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The opinion of the court was delivered,
by Woodward, J.
Assenting fully to the main proposition of the plaintiff in error, that a policy of insurance, with all its clauses, conditions, and stipulations, is the law of the relation between insurers and the assured, by which their mutual rights and liabilities are to be defined and measured, we are, notwithstanding, unable to construe certain clauses of the policy now before us, in the manner suggested on the part of the plaintiff in error.
The provision which forbids an assignment of the policy without the knowledge and assent of the company is immaterial, for Helfenstein made no assignment and attempted to make none of his policy.
The fourth condition is said to have been violated by his sale of goods to Herb & Deppin. If he were suing for the value of the goods transferred to those purchasers, the doctrine of Finley v. The Lycoming Mutual Insurance Company, 6 Casey 311, would be decisive against him ; but the goods in respect of which he claims indemnity, were never sold or transferred to them or any one else. The policy was on a frame storehouse situate in the village of Treverton, and a stock of store goods within the [297]*297same. The storehouse was valued at $2000, and the merchandise at $1000.
Some months after the date of the policy, Helfenstein sold to Herb & Deppin all the goods on the lower floor of the store, and admitted them, on the 1st October 1856, to the possession of that part of the storehouse, for the purpose of making merchandise of the goods; but he retained all the goods on the upper floor, and these were proved to exceed in value the $1000 of insurance. The indemnity he claims is for the building and the goods on the upper floor. The question is whether he has forfeited his right to indemnity by failing to give notice of the partial sale to Herb & Deppin. The language of the fourth condition cannot fairly be applied .to forbid such a sale, because the policy was on merchandise, which is property not to be kept unchanged, but to be used for traffic and commerce. Assuredly the insurance company did not expect the merchant they were insuring would stop his sales or report to them every sale he made. If he lost a thousand dollars’ worth of goods in that store by fire, he is entitled to indemnity, without regard to any transfer, partial transfer, or change of title “ in other goods” which he may have had in the store at the date of the policy. He cannot and does not claim for the goods transferred to Herb & Deppin. The transfer to them does not impair his right to indemnity for the residue.
Nor can the words of the fourth clause be so construed as to make the admission of Herb & Deppin to a joint possession of the store building, a breach of covenant. Those words do not relate to the possession, but to the title. It is transfer or change of title in the property insured, which is forbidden. There was no transfer or change of title of the storehouse or of the goods for which plaintiff now claims indemnity. If the company meant to prevent a change of occupancy or custody, they should have stipulated against it. We see no more violation of this condition, by admitting Herb & Deppin to the possession of the lower floor of the store, than we should have seen in a change of clerks, porters, or watchmen by Helfenstein. Policies do sometimes forbid a change of tenants without notice, and for a very good reason, but this policy does not. The language of the fourth condition, applicable alike to the real and personal property, relates exclusively to changes of title, and has no reference to the possession. We satisfy those words fully, when we hold that in respect to the goods transferred to Herb & Deppin, Helfenstein could set up no claim, but that in respect to the untransferred portion of the goods and- the storehouse, his claim is unimpaired.
Now as to the next point of notice. The sixth condition of the policy binds persons sustaining loss by fire to give notice thereof in writing “forthwith” to the secretary of the company. [298]*298The fire occurred on Saturday, 4th of October. The same day, Ilelfenstein went to Sunbury to see Gray, the local agent, and through him to give notice to the company of the loss. Gray was not at home, and Ilelfenstein requested Mr. Dewart to give him notice as soon as he returned. Gray admits that he got the notice on Wednesday next after the fire, and he swore that he communicated it to the secretary by letter immediately. The secretary came down, says this witness, a day or two after I sent the letter up. I asked him if he was going to Treverton. He said it was not necessary to go; that I should state to Ilelfenstein to make out a list of his losses and send it up to the secretary, and it would be paid. I told him ho had better put it on paper. He put it on paper, and I handed it to Ilelfenstein first time he came up that I saw him. The secretary told me he would send Ulman down to give me instructions —that he was a travelling agent. Ulman came here about ten days after the fire. He said he had been in Treverton.”
The court submitted it to the jury to say whether the notice was in reasonable time, and they found that it was. The notice is to be forthwith and in writing, and is to be directed to the secretary. Ilelfenstein started the very day of the fire to communicate notice to the secretary. He had a right to do it through the local agent, and the letter of the agent was a sufficient compliance with that part of the rule which requires the notice to be in writing. But it was the fourth day after the fire that the agent communicated the notice. Was this in time ? We held, in Trask v. The State Insurance Company, 5 Casey 198, that eleven days was too long a delay, if not excused by circumstances. And again, in The Inland Insurance Company v. Stauffer, 9 Casey 402, that a delay of written notice for eleven days was not excused by a verbal notice to a director and an agent of the company. In the case of The State Mutual Fire Insurance Company v. John Roland, MS. of October Term 1860, under a policy similar to the present, a written notice by the agent of the company, sent to the secretary four days after the fire, at the instance of the assured, was held sufficient.
The doctrine deducible from these cases is, that notice is a condition precedent to the right of recovery, and where it is stipulated to be given forthwith, the condition imposes upon the assured due diligence under all the circumstances of the case. And this is the rule as given in Angelí on Insurance, § 231. The assured may be necessarily occupied a day or two after a fire in providing for his family, or for the safety of goods that have been rescued, and which the insurance company would have to pay for if not taken care of. It would be very unreasonable in such cases to construe the stipulation for notice forthwith so sharply as to make his prudent and proper conduct the ground [299]*299of denying him the stipulated indemnity. In the case of Edwards v. The Baltimore Fire Insurance Company, 8 Gill 176, the policy required the assured forthwith to give notice to the underwriters of any loss. The mail left the place of loss for Baltimore on Monday, Wednesday, and Friday. The fire took place on Friday night, and the assured did not give notice by mail till the next Wednesday. All the circumstances attending the condition of the property and the efforts of the assured to collect and preserve it were left to the jury, to determine whether he was not excused for not mailing his letter in due season. There was a delay of more than five days, and it was not held fatal to the plaintiff’ ’s right. We depart from no rulings of our own, and we violate no safe precedents, when we decide that, all things considered, written notice of the plaintiff’s loss was given to the secretary within reasonable time after the fire. We are sure the company regarded the plaintiff’s conduct as a substantial compliance with his covenant, for the secretary acted upon the notice, not only without cavil or objection, but with an express promise to pay, made through the agent. The thought of taking exceptions to the notice seems not to have entered the secretary’s mind so late as the 5th January 1857, for on that day we find him writing to Helfenstein that the objection of the company to paying his loss was founded on the transfer of part of his goods. Doubtless that was the objection. Down to that time no objection had been taken to the promptness of the notice, but, on the contrary, all the conduct of the secretary indicated that the notice was satisfactory. We do not put the case upon a waiver, and therefore do not run against the very sharp provision of the 6th clause, which requires every waiver to be evidenced by a writing, but we hold that under the special circumstances of the case, the notice was given in substantial compliance with the condition of the policy. There were no laches to be waived. Starting on the very day of the fire to send notice to the secretary through the company’s accredited channel, and causing written notice to go to the secretary within five days after the fire, one of which days was Sunday, was due diligence, was giving written notice forthwith within the spirit and meaning of the policy. We refer ourselves to the subsequent conduct of the company’s agent, not as ratification of an incompetent notice, but as fortifying the above conclusion that the notice was seasonable and sufficient.
The error assigned upon the admission of Gray as a witness was not pressed in argument. There was no ground for it.
The last error assigned was upon the rejection of the assignment of Edward Helfenstein for the benefit of his creditors, made the 8th February 1861, more than four years after the loss accrued, and three and more after this suit was brought. The [300]*300policy, bristling all over with sharp conditions, has one for this occasion, and the company attempt to impale the plaintiff upon it. The condition is, that neither the policy nor any claim thereunder shall be assigned either prior or subsequent to a loss, except with the consent of the corporation, manifested in writing, and in case of transfer, without corporate consent, “ this policy shall thenceforth be void and of no effect, and any liability of said corporation upon such claim shall thenceforth cease.”
However competent it was for the company to make their contract of - insurance dependent on such a condition, it was not competent for them to limit the legal effect of a claim thereunder after loss. Helfenstein acquired, by reason of the loss, a legal right to receive so much money at the hands of the company. That chose in action he might assign. If not assigned before suit, the writ was properly issued in his name alone; if assigned after suit, the court will see that the money when paid by the defendant goes to the proper party. But the condition appealed to is no defence for the company. If it is applicable to a case circumstanced like this, it is void and null, because opposed to the law of the land.
The judgment is affirmed.