Page:North Dakota Reports (vol. 1).pdf/210

 written for further information in reference to this case. We do not ask you to wait on us, but suggest that, upon receipt of information above referred to, if our attorney advises us that we are probably liable, or even that he is in doubt as to our liability, we shall at once adjust and pay the loss. Yours, truly, .”

Exhibit B is relied upon, as the sole evidence of waiver. It was written more than four months subsequent to the loss, and more than one month, under our construction of the policy, after the time limited for furnishing the proofs had expired. The record does not disclose a case where defective proofs of loss have been forwarded to the company, and retained without objection, nor a case of mere delay, followed by a tardy furnishing of the proofs, but a case of an entire failure to make out or furnish the stipulated proofs within the time, or at all. Plaintiff's counsel cite Brink v. Insurance Co., 80 N. Y. 108; Titus v. Insurance Co., 81 N. Y. 410; O’Brien v. Insurance Co., 52 Mich. 131, 17 N. W. Rep. 726; Insurance Co. v. Kranich, 36 Mich. 289, and other authorities, sustaining the now well-established doctrine that after as well as before a breach in the condition of a policy of insurance requiring proofs of loss the company may waive the forfeiture caused by such breach either by “an express waiver, or by acts or conduct from which an intention to waive is expressly inferable.” Brink v. Insurance Company, supra. And such waiver can be made without a new consideration, and by conduct which does not amount to an estoppel. Id. But in all of the cases cited, and in all others examined by the court where a waiver of forfeiture caused by non-service of proofs of loss has been held sufficient, there has been present the element of repudiation by the company of all liability under the policy for some reason other than the omission to furnish proofs of loss. Where, aside from non-production of proofs of loss, the company repudiates all liability, it would be useless and unavailing to furnish the proofs; and in such cases the insured is excused for their non-production. We are of the opinion that § 4179, Comp. Laws, declaring that “delays in the presentation to an insurer of notice or proof of loss, is waived, if caused by any act of his, or if he omits to make