Page:North Dakota Reports (vol. 1).pdf/195

 and delivered to the defendant, and falling due October 1, 1885. In consideration of this note the policy declares that the defendant “does insure W. E. Johnson for the term of six months, from the 6th day of May, 1885, to the 6th day of November, 1885, at 12 o’clock noon, against loss or damage by hail to 100 acres growing crops, the property of assured, located and described as follows.” It is conceded that “on the 15th and 28th days of July, 1885,” the grain in question was damaged by hail to the amount of $1,375.04, and that plaintiff is entitled to that amount, less the accrued amount of the premium note, if entitled to recover at all.

By its answer, defendant admits issuing the policy upon the plaintiff's written application therefor annexed to the complaint, that no part of the loss has been paid, and that the premium note was not due when the loss occurred. “And for further answer defendant alleges that said policy of insurance contained the following covenant, viz.: ‘Now, therefore, the capital stock and securities of said company shall be subject to make good unto the said assured, at the specified rate and terms of Schedule No. 2, on the back hereof, at 70 cents per acre, his, her, or their heirs, executors, administrators, or assigns, all such immediate loss or damages as may occur by hail to growing crops as above specified, described and located, and as set forth in the application for this insurance, but not exceeding the cash value thereof, nor the interest of the assured in the property, nor the average yield per acre, as provided herein, for the term of six months, from the 6th day of May, 1885, at noon, to the 6th day of November, 1885, at noon, and to be paid according to the terms and conditions hereof, but not until requisite proofs, duly sworn and certified to by the assured and one disinterested party, are received at the office of the company in Chamberlain, Dakota. But in no case will this company be liable for any loss or damage that may occur seven days after the crops hereby insured shall have matured.’ That the plaintiff has wholly failed to make any proofs of loss certified and sworn to by assured and one disinterested party, and that the plaintiff has not in any manner furnished to this defendant, at any time before the commencement of this suit, at the office of the company in