Page:North Dakota Reports (vol. 1).pdf/211

 objections promptly and specifically upon the ground,” does not change or enlarge the well-settled rule at common law, and has no application to a case of non-service of proofs of loss. We are therefore of the opinion that the trial court was mistaken in assuming that plaintiff's omission to serve proofs of loss was waived by defendant’s failure to make objection promptly and specifically on that ground.

The remaining question is this: Has defendant waived the forfeiture caused by the omission to furnish proofs of loss by its acts or conduct since the forfeiture occurred? The position is taken by plaintiff's counsel that the correspondence between plaintiff's agent and defendant, found in Exhibits A and B, contains evidence of the waiver of the forfeiture caused by non-service of the proofs of loss. We think counsel are correct im this position. In the letter of December 22, 1885, allusion is made to certain facts within defendant’s knowledge which, if unexplained, would lead defendant to reject the loss, and resist its payment in court. What particular facts are here referred to does not appear by the letter, or elsewhere in the record. But it is quite clear that such facts could have nothing to do with the non-service of proofs of loss. No letter of inquiry would have been necessary to elicit further information concerning the fact of non-service of proofs of loss. That fact was well known to defendant when the letter, Exhibit B, was written, and was of a nature not susceptible of explanation, but was a fact complete in itself without explanation. On December 22d, when defendant’s letter was written, it was already too late, under the policy, to furnish the proofs of loss, and none had been furnished. This default was fatal to plaintiffs claim, if defendant saw fit to insist upon it. Whether this forfeiture would or would not be insisted upon as an excuse for non-payment of the loss was a question turning upon defendant’s views of duty and of business policy, and was not a matter concerning which defendant would need new light or information to be sought for and obtained by correspondence. Again, it appears from defendant’s letter that the defendant was intending to submit the question of its liability to its attorney as soon as, in due course of mail, it should receive cer-