Page:Federal Reporter, 1st Series, Volume 10.djvu/359

 GAUCHE V. LONDON <& LANOASHIRE INB. 00. 347 �Gauche and another, Syndics, v. London & Lancashirb Ins. Co.* [Circuit Court, E. D. Louisiana. December 19, 1881.) �1. Insubancb— Preliminart Pboofs— Arbituation. �The conditions in a policy of insurance requiring prellminary proofs, and a reference to arbitralion in case of difference, are conditions precedent to suit upon the policy. �2, Bame — Delay for P.vtment aftbk Preliminaut Proofs. �The clause providing that " payment of any loss or damage shall be made within 60 days after satisfactory proof thereof shall have been made to the Company," means that suit cannot be maintained until 60 days after delivery of preliminary proofs, which are or should be accepted as satisfactory ; and a suit commenced before the expiration of said 60 days js premature, and the commencement of a suit is the issuance of prooess, not its service upon defend- ant. �8. Bame — Ex.amination dp Insured. �An examination of the insured under oath is consistent with a demand tor proper preliminary proofs. �4. Bame — Waivbr of Dbfbctb in Preliminary Peoofs. �The insurer who rejects as defective preliminary proofs without specifying the defects, but refers the insured to the condition of the policy which defines what they must contain, with a notice that he insists upon an exact compliance with that condition, waives no right to urge the defects in such proofs. �6. Bame— Same. �The policy requiring the insured to f urnish as particular an account as the nature of the case will admit of, will not be complied with by a statement in which there is not even an attempt made to enumerate the articles lost, or to give their kind or value; and a reference to the books and invoices of the insured, even when they had been in the possession of the insurer after the loss, will not be sufficient, as it is the duty of the insured to make out the par- ticular statement. fi. Bame— Arbitration Clause. �The arbitration clause, which requires the award of arbitrators as to the amount of damages, is a valid contract, and a compliance or attempted com- pliance with it is a condition precedent to suit. �7. Sa^Œ — SUFFICIBNCT OF Preliminart Phoops. �The sufflciency of preliminary proofs, there 1 eing no question of waiver in- volved, is a question of law for the court, and not a question of fact for the jury. �Joseph P. Hornor, Francis W. Baker, George H. Braughn, Charles F. Buck, Max Dinkelspiel, L. L. Levy, and Benjamin C. Elliott, for plaintiffs. �Joh7i A. Camphell, Edward W. Huntington, Francis T. Nicholls, Charles Carroll, and Charles E. Schmidt, for defendants. �BiLLiNGS, D. J. This is an action upon a policy of insurance against loss by tire. The defendant pleaded special pleas, or, as �•Reported by .Joseph P. Hornor, Esq., of the New Orleans bar. ��� �