Opinion of Severens, J.

as a separate request by the Connecticut Insurance Company therefor, and in this we concur.

This seems to have been the question upon which the contest in the court below was principally conducted. But the case involves another question, which, being presented by the record and covered by the exception taken by the plaintiff in error to the direction which was given to the jury to find a verdict for the plaintiff in that court, we find it necessary to consider. Referring to this clause in the policy, the question arises whether the insured was not himself bound to take action for the procuring of an appraisal to supply the deficiency in his proofs of loss. The appraisal is not thereby required to be had upon the condition that there shall be a written request by either party, as in Wallace v. GermanAmerican Insurance Company, 2 Fed. Rep. 658, and The Phonix Insurance Company v. Badger, 53 Wisconsin, 283, 287, in which cases it was held that, inasmuch as those words created a privilege which the insured was not bound to exercise, instead of an obligation, the appraisal was not constituted a condition precedent.

It is conclusively settled in the Federal courts, in harmony with the doctrine generally prevailing, that, when the parties are found, upon a just and reasonable construction of their contract, to have stipulated that a matter preliminary to the obligation and the duty to pay shall be determined and fixed by certificate or arbitration, such stipulation shall be taken as a part of the contract and enforced. It is only necessary to refer to the cases in 136 and 137 U. S. in which Hamilton was plaintiff, and the cases therein cited, in support of this proposition. And, though a rather reluctant recognition has in some quarters been heretofore given to the validity and effect of such provisions, the tendency of the courts is to regard them favorably, and not by a strained construction defeat their apparent purpose, conceiving it to be beneficial. Hall v. The Norwalk Fire Insurance Company, 57 Connecticut, 105; Delaware and Hudson Canal Company v. Pennsylvania Coal Company, 50 N. Y. 250.

Applying the general rules for the interpretation of con

Opinion of Severens, J.

tracts, it would seem not to admit of doubt that the parties here intended that, in case of loss, the amount thereof, if the parties did not agree upon it, should be ascertained by appraisers before there should be any obligation to pay. It is expressly stipulated that if they do not agree upon the amount of the loss or damage it shall be determined for them by arbitrators, and their award is declared to be conclusive upon those questions. Although called "appraisers," their functions are those of arbitrators in respect to the subject of loss or damage. It is further stipulated that their award shall constitute part of the proofs of loss required by the contract, and that, until such proofs of loss are furnished, the loss shall not be payable; and the covenant to pay the loss is that it shall be paid sixty days after proofs of the same are made in accordance with the terms of the policy.

The case of Hamilton v. Home Insurance Company, 137 U. S. 370, differed essentially from this. There were two distinct references found in the policy; the first was for a mere appraisal and report not binding on the parties which was to become part of the proofs of loss, the second was for an arbitration after the proofs of loss were received in due form. The liabil ity to pay arose when the proofs of loss were received and found sufficient. The arbitration was an independent matter not connected with those proofs. It was upon that ground that it was distinguished from the previous case.

The case of Hamilton v. Liverpool, London and Globe Insurance Company, 136 U. S. 242, differed from this in that the policy there provided that no action should lie against the company until the award was had. But that difference cannot be material. That language only emphasized what the former language had, in effect, accomplished. It involves an absurdity to say that an action would lie to recover what there is no duty to pay, a loss that is not payable. In some of the leading cases where it was held that the terms of the contract established a condition precedent there was no express provision that an action should not lie before the award was made, and several of these are cases cited with approval by the court in 136 and 137 U. S. already referred to, viz.: Scott v. Avery, 5

Opinion of Severens, J.

H. L. Cas. 811; Collins v. Locke, 4 App. Cas. 674; Viney v. Bignold, 20 Q. B. D. 172; Delaware and Hudson Canal Company v. Pennsylvania Coal Company, 50 N. Y. 250; The United States v. Robeson, 9 Pet. 319; Martinsburg & Potomac Railroad Company v. March, 114 U. S. 549; and there are many other such cases.

Indeed, this precise point was discussed in the case of Delaware and Hudson Canal Company v. Pennsylvania Coal Company, supra, and the same view expressed as is here entertained. And in the case of Hamilton v. Home Insurance Company, 137 U. S. 370, 385, the court treats a condition necessarily implied from the terms of the contract as equivalent to an express agreement that no action shall be brought until the award is obtained. As has been many times pointed out, it is always a question of construction. Whatever the language may be, if the intention of the parties is sufficiently apparent, effect will be given to it.

The Supreme Court, in Hamilton v. Liverpool, London and Globe Insurance Company, 136 U. S. 242, founds its decision upon the principle adopted and applied in The United States v. Robeson and Martinsburg & Potomac Railroad Company v. March, supra. In the first of these cases the amount of compensation was made to depend on the certificate of an officer in the military service, and in the second upon the certificate of an engineer designated "to prevent all disputes." And, indeed, it is difficult to find much difference between such cases and the present. There can be no doubt that, notwithstanding the reference in the contract, in those and the like cases it would have been perfectly competent for the parties to agree upon the subject, and thus have dispensed with the reference, so that, in legal effect, the stipulation comes to about the same thing as here. It devolved, therefore, upon the plaintiff below, when notified that the amount of his loss was disputed, to obtain an appraisal of the loss or damage before he could demand payment of the loss, unless the company expressly or by implication excused it. It was held in Carroll v. Girard Fire Insurance Company of the City of Philadelphia, 72 California, 297, that a declaration upon a

Opinion of Severens, J.

policy containing such a provision which did not aver that the amount of loss had been agreed upon or an award made, or give some excuse for not having obtained it, did not state a cause of action. This would accord with the view of several of the judges in the cases cited who treat the stipulation as of the substance of the things to be done to constitute performance and complete the cause of action. That duty would be discharged by a fair effort to obtain the appraisal, even though the insured failed in consequence of the fraud or misconduct of the other party, the impracticability of organizing the board, or the proceedings' becoming abortive by reason of some radical error of the appraisers, or by any other obstacle preventing him for which he was not at fault. When the conduct of the insurer is such as to lead the insured to suppose that performance on his part is not required, or when the insurer takes such a position in regard to his liability as plainly to indicate to the other party that the insurer would not pay the loss even if the particular requirement of the policy in respect to the proofs of loss were executed by the insured, he is excused from its performance.

In the complaint of the plaintiff in the court below it was alleged that he delivered to the defendant due proofs of loss, and had done and performed all the conditions in the policy. In the first defense presented by the answer this allegation. was denied. The plaintiff below nowhere in his pleadings, either in the complaint or in his original or amended reply, alleges that he had any reason for not demanding an appraisal. He does not allege that he was misled by the defendant, and sets forth no facts from which a waiver could be inferred, except that in the third paragraph of the amended reply it is alleged that the defendant was silent and made no objections after receiving the proofs of loss, and thereby waived any or different proofs. But this allegation is disproved by the evidence when it is shown that the defendant signified its disagreement with the amount of the plaintiff's claim. Nor is there anything in the bill of exceptions, which reports the evidence in full, tending to show that the insured made any attempt to procure the appraisal provided for in the policy,

Opinion of Severens, J.

and the remaining question is whether he was excused from doing so by the conduct of the company. To operate to that result, the course pursued by it must have been such as to give him good reason to suppose that a request from him for an appraisal would have been refused. In that case he would not be required to do a vain thing. Findeisen v. The Metropole Fire Ins. Co., 57 Vermont, 520; Devens v. The Mechan. ics' and Traders' Insurance Company, 83 N. Y. 168; Hambleton v. The Home Insurance Company of New York, 6 Bissell, 91, 95; Tayloe v. The Merchants' Fire Insurance Company, 9 How. 390, 403; Insurance Company v. Wolff, 95 U. S. 326, 330; Knickerbocker Life Insurance Company v. Pendleton, 112 U. S. 696, 709.

Tried by this test the action of the company in its partici pation in the joint correspondence does not show that the insured had any good reason for believing that the company would not have assented to an appraisal in its case, if, without insisting on an unwarranted predetermination of the rules by which the appraisers should be governed, the insured had requested it. In fact, the whole correspondence taken together leads fairly to the opposite inference, and the concluding paragraph of the letter of May 7, 1886, from the companies to the insured, which closed the correspondence, tends strongly to indicate that such a proposition from him would have been readily assented to by the company. It was stated in the first letter (that of April 28, 1886) that the several companies waived none of their rights under the terms of their respective policies. The insured must be presumed to have known and understood, what he now contends and the court holds, that the arbitration then contemplated was not the one provided for by the policy, and there was still the same opportunity after as before that correspondence to have obtained the appraisal and award. The case is not like one where one party has lulled the other into a sense of security, or prolonged the negotiations, until the time has elapsed within which an act might be done according to the agreement. When the negotiations for a joint appraisal and award ended, and nothing had been accomplished, the parties stood where they did before, and the proper course was still open.