Page:Federal Reporter, 1st Series, Volume 10.djvu/360

348 FEDERAL EBPOKTER. �under oar Code of Practice they would be termed, dilatoiy exceptions, along with the plea to the merits. These pleas are to the effect that the conditions precedent establislied by the policyhave net been per- forried : (1) In that no proper preliminary proofs were furnished ; and (2) that there had been no arbitration whereby the "amount of loss" must be determined, and that until these conditions have been performed no right of action in the plaintiff exists. The court ruled that the plaintiffs, having alleged performance by furnishing prelim- inary proofs, were confined to evidence in support of that allegation, unless they elected to amend and plead a waiver of that obligation ; and the plaintiffs elected to stand upon the allegation that prelim- inary proofs were ftirnished. Under rule 3 of this court these special or dilatory pleas were first tried, and when the evidence on the part of the plaintiffs was finished, defendants' counsel asked the court to exclude the testimony from the consideration of the jury as being insufficient to show the delivery of preliminary proofs or any arbi- tration and award. The policy of insurauce offered in evidence by the plaintiffs contains certain provisions whieh are deelared therein to be conditions with reference to the preliminary proofs, and with reference to arbitration. These provisions are held to be conditions precedent by an unbroken line of authorities. Unless they are against the policy of the law, or have been waived, they must be proved to have been performed as stipulated, for they are the law of the case established by the parties themselves. �1. First, as to the preliminary proofs. The stipulations on this subject are as follows: �No. 8. "AU persons insured by this oompaiiy, aiistaining any loss or damage by fire, shall immediately give notice to the compaiiy or their agents, and within 14 days after such loss or damage bas occuned sball deliver in as pai- ticular an account of their loss or damage as the nature of the case will admit of, and malie proof of the same by their declaration or affirmation, and by their books of account, or such other proper evidence as the directors of tiiis Company or their agents may reasonably require ; and until such declaration or affirmation, account and evidence be produeed, the amount of such loss, or any part thereof, shall not be payable, or recoverable." �And— �No. 10. "Payment of any loss or damage shall be made within 60 days after satisfactory proof thereof shall have been made to the company in accordauce with the conditions of tiiis policy, and in every case of loss the company will reserve to itself the right of reinstatement, in preference to the payment of claims, if it shall judge the former course to be most expedient." ��� �