Page:Federal Reporter, 1st Series, Volume 10.djvu/365

 GAUCHE V. LONDON & LANCASHIRE INS. CO. 353 �itatemc it. It has not one element of such a statement. A partic- ular statement should give accurately, if possible, or, if not possible, approximately, the kind and vahie of the articles lost. Catlin v. Spriiifijield Ins. Go. 1 Sumn. 437. �It should also be at least an effort to enumerate. It should be in its aim of such a circumstantial character as to afford detailed, item- ized information of the estent of the loss. AU this is wanting. It gives the stock on hand in May, adds the invoices in gross, deducts the sales and profits, and presents the result in bulk, so to speak, as the sole means of arriving at the loss. It gives no weight, no meas- urement, no reckoning, no description, however general. This is no partictilar account. It is rather an estimate witkout particulars. In- stead of enabling verification it would defy it. Instead of furnishing opportunity to substitute, it gives not even the most vague descrip- tion. Precisely this manner of statement was condemned as being Dot a particular account, first by the common pleas court by the court, and, on appeal, by the supreme court, in Lycoming Ins. Go. v. Updegraff, 40 Pa. St. 311. The court there said, (p. 323 :) "We agree with the learned judge of the common pleas, that the paper wbich was furnished was not such a particular account of the loss as "was required by the policy." The case is not varied by the fact that the insurers had had possession of the bocks containing the inventory and invoices to which reference was made. It was, nevertheless, the duty of the assured to carry on the process of searching for and find- ing the elements of a particular account in their own books, and they could not thus cast it upon the insurers, I do not mean to say that accounts no more particular than this have not been accepted by courts as sufficient, but it has been where the acts of the underwriters constituted a waiver, or where the fire which occasioned the loss also destroyed all means of identifying and describing the things destroyed. But where, as here, there is an absence of all evidence of estoppel on the part of the defendants, and of inability on the part of the insured, I know of no case which holds such a statement as was presented in this case to be a compliance with the stipulation to furnish a "par- ticular account." �2. Is the question here presented one for the court or the jury? The answer depends upon whether the question be one of law or fact If there had been evidence tending to show waiver of preliminary proofs, that would have been for the jury. If there had been evidence tending to show destruction of books, so that there could be no com- v.l0,no.3— 23 ��� �