Page:Federal Reporter, 1st Series, Volume 10.djvu/362

 350 FEDERAL REPORTER. �— And that the damaged goods were subsequently taken by the insured The examination of the insured was entirely consistent with the demand for proper preliminary proofs. See ColumUan Ins. Co.v. Lawrence, 2 Pet. 53. The court there say : �" Did the examination of the title, and the proceedings of the board respect- ing it, presuppose an examination of the preliminary proofs and an acquies- cence in its sufHciency? We think not. The proof of interest, and the certi- flcate whieh was to precede payment if the claim should be admitted, are distinct parts of the case to be made out by the assured. Neither of those parts depends on the other. The one or the other may be first considered without violating propriety or convenience, The consideration of the one does not imply a previous consideration and approval of the other. The lan- guage of the ninth ruie does not imply that the proof it requires is flrst in order for consideration. After stating what shall be done by the assured, the rule requires the affldavit and certifleate in question, and adds that until such affldavit and certifleate are produced, the loss claimed shall not be payable. The affldavit and certifleate must precede the payment, but need not precede the consideration of the claim." �The agreement that the value of the damaged and saved gooda should be fixed at $1,000, had no tendency — no direction — towards waiver. In fact, it rendered a full enumeration of the lost articles all the more necessary, as in case the defendants had elected to reinstate the plaintiffs would have been debtors to them in that sum. �It was also urged by counsel for plaintiffs that so complete had been the proofs that the general objection of the defendants worked a waiver as being utterly groundless. I cannot assent to that reason- ing. If one party to a contract insists it, bas not been performed, even if he be perverse and altogether unsupported by reason or law, the answer to his demand for performance could never be that by unreasonable exaction he had waived any right, but he could be answered only byshowing complete performance of the contract. It is not contended that there was any express waiver, nor has there been any evidence introduced tending to show an implied waiver. The doctrine upon which waivers of this clause have been implied is that of good faith, that neither by silence, nor by putting the refusai to pay upon grounds which seemingly admit or dispense with prelimi- nary proofs shall the insurer mislead the assured into a belief that his proofs are proper, and afterwards be allowed to absolve himself from liability by showing defeets in those proofs. This doctrine is not only the doctrine of the law : it is that of morals and of integrity. But it lias no application to a case where, as here, from first to last, the insurer gave notice to the assured that with respect to proofs the ��� �