Page:North Dakota Reports (vol. 1).pdf/213

 ion that the whole tenor of the letter of December 22d, including defendant’s conditional promise to “adjust and pay the loss,” was calculated to induce the plaintiff to believe, and did induce him to believe, that the forfeiture as to proofs of loss would not be insisted upon by the defendant. This introduces an element of estoppel, and the court hold that defendant is estopped by its letter from setting up the forfeiture. Good faith on defendant’s part required that defendant should have either remained silent, or informed plaintiff that it would, if sued, insist upon this forfeiture, if such was in fact, its purpose. By so doing, plaintiff might have avoided the large expense incident to the prosecution of a suit based upon the loss. Plaintiff's letter of December 16th was a demand of payment of the loss, and contained a distinct notification to defendant that suit would be entered on the claim if it was not settled before January 1, 1886. If defendant intended to allege the, then existing forfeiture as to proofs of loss as a defense to an action upon the policy, good faith demanded that it should inform the plaintiff of its purpose, or keep silent. It was bad faith on defendant's part to so couch its reply to plaintiff’s letter as to lead plaintiff to believe that this particular defense, which then existed, would not be pleaded. This brings the case within the rule of Brink v. Insurance Co., supra. It follows that the defendant is estopped from pleading the forfeiture as to proofs of loss. The judgment should be affirmed. It is so ordered. All concur.

, C. J., having been of counsel, did not sit;, judge of the fifth judicial district, sitting by request.

Rehearing denied.