Page:North Dakota Reports (vol. 1).pdf/196

 Chamberlain, Dak., or at any other place, any proofs of loss whatever, and has wholly failed to comply with the provisions of the policy. And for further answer defendant alleges that it is provided in said policy of insurance that, ‘when a loss shall have occurred, assured agrees to make and send by registered mail a statement thereof, not sooner than five and not later than ten days thereafter, if the crops are yet green. If ripe such notice must be mailed not later than the day following the loss.’ Defendant avers that the plaintiff failed to make or send by registered mail a statement of his loss within the time mentioned, not sooner than five days and not later than ten days thereafter, nor did plaintiff in any manner send by registered mail a statement of said loss, showing that the grain was ripe, within the day following the loss; that the said plaintiff wholly failed to furnish the said information by registered mail within the time provided by said policy, or at any other time.

And defendant, further answering, alleges that the said policy of insurance contained the following covenant and agreement: ‘It is also mutually agreed and made a part of this contract that no suit or action for the recovery of any claim for loss or damage under this policy shall be sustained in any court of law or equity until after an award, on demand of either party, shall have been made by arbitration in the manner hereinbefore provided, nor unless such suit or action shall be commenced before the expiration of six months next ensuing after the loss; and, unless such suit or action shall be commenced within the said time, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute to the contrary notwithstanding.’ That this action was not commenced within six months from the date upon which said alleged loss occurred; that the said suit was commenced on March 24, 1888. And defendant for further answer alleges that the policy of insurance so issued, contained the following covenant, viz: ‘Assured’s application, of even number and date herewith, on file in the office of the company, in Chamberlain, Dakota, is hereby referred to as a part hereof, and is a warranty on the part of assured, and the basis upon which this insurance