Page:North Dakota Reports (vol. 1).pdf/212

 tain information for which it had written. But, as we have seen, further information was not required to enable an attorney to form an intelligent opinion as to the question of defendant’s liability, so far as the non-service of proofs of loss would affect the question of liability.

Our conclusion is that defendant had written for, and was in quest of, information relating to some matters in regard to the insurance other than the non-service of proofs of loss. This view is strengthened by the unqualified promise contained in defendant’s letter to “at once adjust and pay the loss” if the information already written for should turn out to be of a nature which should create a doubt of defendant’s non-liability in the mind of its attorney. But it appears by the letter of December 22, 1885, that defendant was at that time already in “possession of some facts in relation to this insurance” which would lead the defendant to “reject the loss and resist its payment in court,” unless such facts should be explained by information already written for, and expected to reach the defendant by due course of mail, if it came at all. Furthermore, by this letter defendant promised to give plaintiff a definite answer “in reference to the case,” as soon as, “in due course of mail,” the defendant received an answer to its letter of inquiry. Suit was not brought upon the claim for more than two years after the date of defendant’s letter, but in that interval of time the defendant did not see fit to communicate with the plaintiff, nor send its promised “definite answer” to plaintiff’s demand of payment. From defendant’s long silence, we infer that its original conclusion to reject the claim, which had been reached in December, 1885, had not been changed by any fact that came to its knowledge after that date, in reply to its letter of inquiry or otherwise. Briefly summed up, the position is as follows: Defendant, on or prior to December 22, 1885, had conditionally decided to reject the claim on certain grounds which it did not disclose to plaintiff, but which grounds had nothing whatever to do with the non-service of proofs of logs, and on said date defendant refused payment of the claim on such other grounds. The refusal to pay on other grounds brings the case within the rule of the authorities already cited. The court is of the opin-