was intended to be, and according to a fair interpretation must be, regarded liable in the absence of such excuse. For, manifestly, neither the provision for rent of the fire hydrants to cease in case of a longer than five days' suspension of the water supply for the particular purpose mentioned, nor the reserved right of the City of Paducah to rescind the contract for the cause stated, was intended by the parties, or can be properly construed, to release appellee from liability, or deprive the City of Paducah or its inhabitants of the remedy for non-performance of the contract while it is in force.

The rule laid down in the leading case of Hadley v. Baxendale, 9 Exch. 353, is that "where two parties have made a contract which one of them has broken, the damages which the other ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally—that is, according to the usual course of things-from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." This rule, which has been generally adopted and approved in the United States, is applicable and useful in determining the question of legal liability, as well as in fixing the measure of damages in case of breach of contract; for "parties, when they en ter into contracts, may well be presumed to contemplate the ordinary and natural incidents and consequences of performance or non-performance." 1 Sutherland, Dam. 77.

It is, however, argued that the damages sustained by appellant were not the natural and proximate consequences of the neglect complained of, and therefore no recovery can be had; and the case of Patch v. Covington, 17 B. Mon. 722, is cited to sustain the position. There the action was to recover in damages the value of a house destroyed by fire in consequence of failure on the part of the City of Covington to keep its public cisterns in repair, and to provide the fire company with hooks, ladders and other necessary apparatus. The fire originated in a building adjacent to that of the plaintiff. The firemen had reached the house before the flames were communicated to it, and, as alleged, would have been able to save it but for neglect of the city to keep sufficient water in the cistern. But the judgment dismissing the action was affirmed, on the ground that the cause of plaintiff's loss "was wholly disconnected from, and independent of, the city, or its acts or omissions."

the immediate consequence of which failure was, as alleged, loss of the building. There is a clear distinction between the occurrence of a fire, the origin of which is often unknown, and for which generally there attaches no legal liability to any person, and the extinguishment of it, which generally can be accomplished by application of water, that a party may, by contract, undertake and bind himself to supply in the proper manner and ime. It does not, therefore, make any difference in this case how or where the fire originated, provided appellant did not cause it; because the duty of appellee was not to prevent occur rence of it, but to keep the stipulated quantity of water in readiness to be applied to put it out.

Waterworks, however costly and skillfully constructed and operated, are not potent enough to extinguish, with absolute certainty, and at all events, every fire occurring in a city before destruction of, or serious injury to, the property ignited, nor are they ever made with such end in view. But it is entirely practicable by that means to supply water in such quantity, and having such head or pressure, as to usually extinguish a fire before serious damage is done, when promptly and efficiently used; and parties to a contract like this must be presumed to have contemplated and agreed that such, in the natural order of things, would be the probable effect of a performance of it, else there would have been no rational motive nor adequate consideration for entering into it. But the degree of probability in every such case as this must, of course, depend upon the stage of the fire when water is applied, upon the efficiency of the firemen, and all other attendant circumstances and agencies favorable or adverse to arresting or extinguishing fires.

It seems, if the contract before us is not to be treated as meaningless and totally ineffectual for every purpose, the parties to it must be regarded as having contemplated and assented to the consequences of nonperformance, as well as the profit and advantage of performance, and consequently appellee is liable in this case for such damages as its failure or refusal to perform may have caused to appellant. The inquiry therefore is, whether, considering the purpose, character and capacity of the waterworks, and all the attending circumstances and agencies, the fire which destroyed appellant's property could and would have been prevented or extinguished before doing damage if appellee had performed its contract; and as the facts alleged in the petition and amended petition constitute a prima facie cause of action, the lower court erred in sustaining the demurrer.

A petition for rehearing was subsequently filed, and on March 18, 1890, Lewis, Ch. J., on behalf of the court, delivered the following response:

before us. But, even assuming no action | could be maintained in that case, still the doctrine of respondeat superior would not, as contended, avail to relieve appellee of its own liability because the relation of principal and agent does not exist in any sense between the City of Paducah and it. On the contrary, they entered into a contract by which for a valuable consideration to be paid by taxation and by rents for private use of hydrants, appellee agreed, among other things, to keep a specified quantity of water in its stand-pipe at all times except on particular occasions mentioned, none of which existed when appellant's property was burned.

It is too plain for discussion that the City of Paducah had the power to and did make the contract for benefit of its inhabitants, and consequently each one of them has a right to sue and recover for an injury caused to him by a breach of it.

Appellee did not covenant to prevent occurrence of fires, nor that the quantity of water agreed to be furnished would be a certain and effectual protection against every fire, and consequently does not in any sense occupy the attitude of an insurer. But it did undertake to perform the plain and simple duty of keeping water up to a designated height in the standpipe, and if it failed or refused to comply with that undertaking, and such breach was the proximate cause of destruction of appellant's property, which involves questions of fact for the determination of the jury, there exists no reason for its escape from answering in damages, that would not equally avail in case of any other breach of contract.

Petition for rehearing overruled.

KENTON INSURANCE CO., Appt.,

v.

C. S. WIGGINTON.

(....Ky.....)

1. Failure to furnish proof of loss within the time required by a policy of fire insurance is

NOTE.-Fire insurance; provision requiring statement and proof of loss.

The Pennsylvania Act providing that proofs of loss within twenty days shall be sufficient, is for the protection of persons insured, and does not exact proof within that time. Springfield F. & M. Ins. Co. v. Brown, 128 Pa. 392.

A provision for payment in sixty days after proofs of loss refers to the proofs required within thirty days, and not to other proofs required for establishing the claim. Clover v. Greenwich Ins. Co. 2 Cent. Rep. 873, 101 N. Y. 277.

The failure of the assured to serve upon the company proofs of loss within the time usually limited by such company for that purpose in its printed forms will not prevent a recovery by the assured for the breach of a parol contract to insure or to issue a policy. Nebraska & L. Ins. Co. v. Seivers (Neb.) 43 N. W. Rep. 351.

The provision in a policy requiring the insured to furnish a full and detailed statement of the loss and the amount claimed does not require that the insured shall attempt to compute or state the share of loss to be borne by each insurer where there are

waived where the insured, after attempting to do everything necessary, is lulled into security by the acts of the company or its agent, and is led to believe they are preparing to adjust his loss.

2. The owner of an undivided fourth of a tract of unpartitioned land, who is merely a life tenant of the rest, to which his claim of ownership in fee is then in litigation, does not, by stating that he is the unconditional owner of the land, make a material misrepresentation which will avoid a policy of fire insurance upon a building situated thereon which provides that the application must disclose the true character of the title, and the fact of any litigation concerning it, where the building insured was remodeled from a worthless one at his own expense, and he would therefore, in partition, be entitled to it without estimating its value, and to the ground on which it stood; and where it is provided by statute that neither misrepresentations nor warranties shall affect the right to recover unless material to the risk, or fraudulent.

several who are liable. Fuller v. Detroit F. & M. Ins. Co. 36 Fed. Rep. 469.

A false statement, or an overestimate of the loss, will not defeat the right to recover, where no fraudulent intent is shown. Schuster v. Dutchess Co. Mut. Ins. Co. 3 Cent. Rep. 183, 102 N. Y. 260; Stone v. Hawkeye Ins. Co. 68 Iowa, 737.

Waiver of objections to want of proof of loss. Where the policy required proofs to be rendered as soon as possible, what is a reasonable time is a mixed question of law and fact. Am. F. Ins. Co. v. Hazen, 1 Cent. Rep. 631, 110 Pa. 530; Hickman v. Shimp, 109 Pa. 16; Miller v. Hartford F. Ins. Co. 70 Iowa, 704: Springfield F. & M. Ins. Co. v. Brown, 128 Pa. 392.

Omission of the company to object to the form of proofs will operate as a waiver. German Am. Ins. Co. v. Hocking, 6 Cent. Rep. 911, 115 Pa. 398. See note to Smith v. Niagara F. Ins. Co. (Vt.) 1 L. R. A. 216.

Taking cognizance of loss, and agreeing to pay. After an insurance company has itself taken cognizance of a loss and prepared such proofs as it

insured that he was the owner in fee of the property. The dwelling insured having been destroyed by fire, the appellant refused to pay the loss, for the following reasons: First. It contends that no preliminary proof of the loss was made and presented to the Company as the contract of insurance required; and, that being a condition precedent on the part of the insured, the recovery should have been denied. Second. The insured owned only an interest of one fourth in the property when he represented that he was the sole owner in fee. Third. The title to the property was in litigation in the Carroll Circuit Court when the insurance was effected by the appellee; and, the contract of insurance making the policy void if that fact is not disclosed, no recovery should be had. The policy provides that no action shall be maintained until the proofs of loss are furnished as required by the contract, and the application must disclose the true character of the title; and, if incumbered or involved in litigation, such facts must be disclosed by the insured. An examination of this record has satisfied us that no valid defense has been made out, and the absence of the preliminary proofs essential to the demand of payment from the Company was caused by the conduct of the Company or its agents, and for which the appellee is in no wise responsible. As soon as the fire occurred, and the appellee's property was destroyed, he notified the local agent of the Company, and asked him for the usual blank forms kept and furnished by such companies to the insured as a guide in proving the loss sustained, and, in response, was told that the agent had no blank forms, but would write or see the principal agent or the home office on the subject. The principal office having been notified of the destruction of the property, and the appellee becoming restless at the delay in delivering to him the formula for making his preliminary proof, the local agent went to Covington, the place of the principal office,

and was there told, in effect, that someone would be sent down to see about the matter, or to settle it, all of which was communicated to Wiggintou, who relied on the statements of the local agent, that are not denied by the Company, but admitted to be true. The home office knew that the written forms had been applied for by Wigginton, the appellee, at the office of the agent at Carrollton; had been written to by this agent to send the forms, and, instead of doing so, or delivering them to the local agent, who had gone to the home office to inquire about the delay, said to the agent, "We will send someone down to see about it," and this "someone" did come, but never saw the appellee, or approached him on the subject, nor did he give the latter the opportunity of seeing him, but left the Town of Carrollton as if the matter was of no importance to the appellee or the Company. The appellee began to comply with his contract the morning after the fire, and attempted to do everything that was necessary to notify the Company of his loss, but delay after delay, resulting more from the action of the Company than that of the appellee, prevented the proofs from being made within the thirty days; and that the appellee was lulled into security by the conduct of the Company or its agents is too plain a proposition to be controverted. There was not the shadow of a suspicion that the dwelling was burned for the purpose of obtaining the insurance; and the appellee, no doubt a plain, unsuspecting farmer, confiding in the statements of the local agent, and with the full belief that this Company was preparing to adjust the loss, took no steps to present the proofs, except in the manner stated, and is now met with the defense that the Company was delaying payment for the want of the proof of loss, and the still further defense that no payment would have been made, if the proof had been furnished, because the appellee was not the owner in fee of the property insured.

Where un insurance company forwarded blanks for proofs of loss, and the president of the company promised to pay the loss, all defenses are thereby waived except that of power and authority to make the contract of insurance. Eddy v. Merchants M. & C. Mut. F. Ins. Co. (Mich.) 40 N. W. Rep. 775.

An agreement to pay whatever appraisers would make as the amount due, as soon as the value was made, is a waiver of preliminary proofs of loss. Snowden v. Kittanning Ins. Co. 122 Pa. 502.

Where a policy taken out for the benefit of a mortgagee of the property insured contains the provision that the company, within sixty days after proof of loss, shall either pay the amount of the insurance or replace the property, or may, within fifteen days after statement of loss, notify insured of intention to rebuild or repair; and proof of loss was delivered by plaintiff to the company, and, more than sixty days before suit was brought, it delivered to defendant another proof of loss sworn to by the assured, and defendant remained silent,-it was a waiver of any defects in proof of loss. Eliot Five Cent. Sav. Bank v. Commercial U. Assur. Co. 2 New Eng. Rep. 536, 142 Mass. 142.

Assur. Co. v. Hocking, 6 Cent. Rep. 915, 115 Pa. 407; Martinson v. North British & M. Ins. Co. 7 West. Rep. 637, 64 Mich. 372; Carpenter v. Continental Ins. Co. 61 Mich. 635; German F. Ins. Co. v. Grunert, 112 Ill. 69; Titus v. Glens Falls Ins. Co. 81 N. Y. 419; Gane v. St. Paul F. & M. Ins. Co. 43 Wis. 109.

Deficiencies in proofs of loss are waived if the insurance company, on receiving the proofs, instead of pointing out the deficiencies, refuses to pay the loss, placing its refusal on the ground of a breach of a condition in the policy prohibiting a vacancy of the buildings insured. Continental Ins. Co. v. Ruckman, 127 Ill. 361.

Waiting forty-five days before claiming that there is a defect in proofs of loss furnished is a waiver of a defect in the description of other policies. Jones v. Howard Ins. Co. 26 N. Y. S. R. 844.