pany, the damaged stock in small lots, and suffered the same to be scattered, thereby depriving the company of the right to take the property at its appraised value. And it is insisted that in these respects the insured has failed to perform conditions precedent to his right of recovery. To this the plaintiff (in the court below) replies that no such demand for appraisal was made by the company as is contemplated by that provision in the policy.

The case is one of several instituted against various companies who had issued policies on the same stock in force at the time of the fire. Two of these, involving the construction and validity of differing provisions in the policies relative to the right of the parties to demand an appraisal and award, one or both, of disputed demands and other matters, have already been decided and disposed of by the supreme court. Hamilton v. Liverpool, L. & G. Ins. Co., 136 U. S. 242, 10 Sup. Ct. 945; Hamilton v. Home Ins. Co., 137 U. S. 370, 11 Sup. Ct. 133. In the first of these the clause in the policy of that insurance company upon that subject was held to establish a condition precedent, without performance of which, upon the request of the company, the plaintiff could not recover. In the other case, however, it was held that the clause relating to that subject in that company's policy did not require the appraisal and award as a condition to the right of action, but constituted a collateral term in the contract, upon which an independent suit could be brought upon a violation thereof. The present case seems to have been tried upon the assumption by both parties that the provision in the policy brought it within the decision in Hamilton v. Liverpool, London & Globe Insurance Company, into that class of cases where the stipulation makes the appraisal or award a condition precedent.

On the 26th of April,-10 days after the fire,-Hamilton, the insured, transmitted to the Connecticut Fire Insurance Company preliminary proofs of loss, which were not otherwise objected to by the company than is expressed or implied in the correspondence which presently followed between that company and the several other insurance companies acting in concert with it on the one hand, and Hamilton on the other, indicating a disagreement with the insured about the amount of loss or damage, and a demand for its determination by appraisers. All other objections to the proofs, if there were any, were waived by the failure to bring them forward. But I think that the letter of the 28th of April, hereinafter quoted, ought to be regarded as tantamount to an objection on the part of the company to the sufficiency of the proofs of loss in respect to the amount of damages claimed. And this brings us to the consideration of the main points in controversy, which are: First, whether the company made such a demand for an appraisal and award as the policy authorized it to make; and, second, if it did not, whether the insured was himself bound to take action for the procuring of an appraisal to supply the deficiency in his proofs of loss as a condition to his right to recover. If this last question is decided in the affirmative, the further inquiry is presented whether he sufficiently discharged his obligation in that behalf, or was he excused therefrom by the conduct of the company?

The reception of the proofs of loss was acknowledged by this insurance company's agent on the 27th April, 1886, with the statement that he would forward them to the proper authorities at once; and on the following day the correspondence above referred to between the insurance companies acting in concert with the insured was begun by the following letter of the company:

"Cincinnati, O., April 28, 1886. "Robert Hamilton, Esq., Covington, Ky.-Dear Sir: The undersigned, representing the several insurance companies against which you have made claim for loss under their respective policies of insurance upon your stock in your tobacco factory, Nos. 413 and 415 Madison Ave., Covington, Ky., claimed to have been damaged by fire on April 16, 1886, beg leave jointly to take exception to the amount of claim made, and to demand that the question of the value of and the loss upon the stock be submitted to competent and disinterested persons, chosen as provided for in the several policies of insurance under which claim is made; and we hereby announce our readiness to proceed at once with this appraisement, so soon as your agreement to the demand is declared. We further desire jointly to protest against the removal, sale, or other disposition of the property until such an appraisement has been had, and to notify you that the insuring companies will in no way be bound by such ex parte action. You may address your reply to the joint demand made above in care of the London and Liverpool and Globe Insurance Company, Third and Main streets, Cincinnati. Waiving none of the rights of the several companies under the terms of their respective policies, we are,

"Very respectfully yours."

[Signed by the agents of 11 insurance companies, of which the plaintiff in error was one.]

To this Mr. Hamilton's attorney replied on the 29th of April, in substance, that he would accede to an arbitration if the person whom the company would select should be acquainted with the manufacture of tobacco, and upon the express understanding that the arbitrators should have full opportunity to examine the stock of tobacco, and that it should then be sold at public auction, in order that the value thus ascertained, with such other evidence as the parties desired, might be presented to the arbitrators. The letter further stated that the interests of Mr. Hamilton required a speedy sale of the tobacco. A lengthy correspondence upon the subject between the companies and the attorney for Mr. Hamilton ensued. It is set forth in detail in the report of the case of the Same Plaintiff v. Liverpool, L. & G. Ins. Co., 136 U. S. 242, 248--252, 10 Sup. Ct. 945, ending with the letter dated May 7, 1886, which terminated the action of the parties in respect to the obtaining an appraisal or arbitration. It is not deemed necessary to repeat this correspondence here. The record of it in the case in the supreme court above referred to was stipulated into the present case upon the trial, and it suffices here to say that it is substantially a prolongation of the controversy as to what should be the rule of proceeding by the arbitrators to be chosen in the reception of proof, and as to the right of the insured to make sale of the property pending the arbitration. The companies insisted that the appraisers, as they called them, should be at liberty to take testimony or not, and so much thereof as they should think proper; the insured contending, on the contrary, for the right to introduce testimony.

The stock was sold by Hamilton at public auction on May 29, 1886.

This case differs in an important fact from that of Hamilton v. Liverpool, L. & G. Ins. Co., 136 U. S. 242, 10 Sup. Ct. 945, in that this insurance company did not, as that company did, after the termination of the negotiation of the companies acting conjointly with Hamilton, demand separately for itself an appraisal.

Referring to the correspondence in this case, it will be seen that it consisted of a joint demand by all the companies for an appraisal as the means of settling the value of the property and the amount of the loss, and a refusal of such demand unless the proceedings of the appraisers should be agreed to be conducted upon certain principles. The companies stood together in making this demand, and, fairly construed, their language indicates that but one body of appraisers was intended, and that the appraisal should be once for all. Each of the companies supported the demand of the others.

The provisions in the clauses relating to the subject were widely different in the several policies. In some, as in the case of the Home Insurance Company, the appraisal, which was to be part of the proofs of loss, was to be a mere report, having no binding force upon either party, and under that provision the demand for an arbitration to fix the amount of value and loss as a condition to the right of recovery was plainly unauthorized. In others, the appraisal was to be had upon the written request of either party, as in the case of the Liverpool, London & Globe Company. In others, it was to be had without such condition, as in the present case. In some, the report or award was a condition precedent to suit, in others not. In some, the number of appraisers was fixed, in others not. In some, two are to be chosen with no umpire. In others, an umpire was provided for, but the mode of appointing him varied even in those. In short, neither the number nor the mode of appointment, nor the functions or mode of proceeding, nor the nature of their report or its legal effect, were the same or alike. This was not a demand for appraisal by this insurance company such as its policy gave it a right to make. It did not acquire its right in any respect from the policies of other companies, and it had no legal concern with their disputes, or the mode to be adopted for their settlement, and had no obligation to champion their cause, or mix its controversy with theirs. The insured was not bound to accept such proposition for determining the value and damage as was demanded of him by the companies, this among them. If he had done so, it would have been an arbitration outside and independent of this policy, standing on the general ground of commonlaw arbitrations. It is true that Mr. Hamilton did not expressly object to the proposed arbitration on the ground that it was a joint demand. He signified his assent to the demand, provided the arbitration was to be conducted on certain principles. To such a demand he had the right to name his own conditions. He was not put in default in respect to this requirement in the policy by any rightful demand made by the insurance company. The court below

ruled that the demand for appraisal made by the companies in this joint correspondence was not such a demand as this policy authorized, and was ineffectual as a separate request by the Connecticut Insurance Company therefor, and in this I concur.

This seems to have been the question upon which the contest in the court below was principally conducted. But the case involves another question, which, being presented by the record and covered by the exception taken by the plaintiff in error to the direction which was given to the jury to find a verdict for the plaintiffs in that court, we find it necessary to consider.

Referring to this clause in the policy, the question arises whether the insured was not himself bound to take action for the procuring of an appraisal to supply the deficiency in his proofs of loss. The appraisal is not thereby required to be had upon the condition that there shall be a written request by either party, as in Wallace v. Insurance Co., 2 Fed. 658; Insurance Co. v. Badger, 53 Wis. 283, 287, 10 N. W. 504,-in which cases it was held that, inasmuch as those words created a privilege which the insured was not bound to exercise, instead of an obligation, the appraisal was not constituted a condition precedent.

It is conclusively settled in the federal courts, in harmony with the doctrine generally prevailing, that when the parties are found, upon a just and reasonable construction of their contract, to have stipu lated that a matter preliminary to the obligation and the duty to pay shall be determined and fixed by certificate or arbitration, such stipulation shall be taken as part of the contract, and enforced. It is only necessary to refer to the cases in 136 and 137 U. S., 10 and 11 Sup. Ct., in which Hamilton was plaintiff, and the cases there cited in support of this proposition. And though a rather reluctant recognition has in some quarters been heretofore given to the validity and effect of such provisions, the tendency of the courts is to regard them favorably, and not by strained construction defeat their apparent purpose, conceiving it to be beneficial. Hall v. Insurance Co., 57 Conn. 105, 17 Atl. 356; Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250.

Applying the general rules for the interpretation of contracts, it would seem not to admit of doubt that the parties here intended that in case of loss the amount thereof, if the parties did not agree upon it, should be ascertained by appraisers before there should be any obligation to pay. It is expressly stipulated that if they do not agree upon the amount of the sound value and damage it shall be determined for them by arbitrators, and their award is declared to be conclusive upon those questions. Although called appraisers, their functions are those of arbitrators in respect to the subjects of value and damage. It is further stipulated that their award shall constitute part of the proofs of loss required by the contract, and that until such proofs of loss are furnished the loss shall not be payable. And the covenant to pay the loss is that it shall be paid 60 days after proofs of the same are made in accordance with the terms of the policy. The case of Hamilton v. Home Ins. Co., 137 U. S. 370, 11 Sup. Ct. 133, differed essentially from this. There were

two distinct references found in the policy. The first was for a mere appraisal and report, not binding on the parties, which was to become part of the proofs of loss; the second was for an arbitration after the proofs of loss were received in due form. The liability to

pay arose when the proofs of loss were received and found sufficient. The arbitration was an independent matter, not connected with those proofs. It was upon that ground that it was distinguished from the previous case.

The case of Hamilton v. Liverpool, L. & G. Ins. Co., 136 U. S. 242, 10 Sup. Ct. 945, differed from this in that the policy there provided that no action should lie against the company until the award was had. But that difference cannot be material. That language only emphasized what the former language had, in effect, accomplished. It involves an absurdity to say that an action would lie to recover what there is no duty to pay,-a loss that is not payable. In some of the leading cases, where it was held that the terms of the contract established a condition precedent, there was no express provision that an action should not lie before the award was made; and several of these are cases cited with approval by the court in 136 and 137 U. S., 10 and 11 Sup. Ct., already referred to. Scott v. Avery, 5 H. L. Cas. 811; Collins v. Locke, 4 App. Cas. 674; Viney v. Big nold, 20 Q. B. Div. 172; Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250; U. S. v. Robeson, 9 Pet. 319; Railroad Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035. And there are many other such cases. Indeed, this precise point was discussed in the case in 50 N. Y., and the same view expressed as is here entertained. And in the case in 137 U. S., at page 386, 11 Sup. Ct. 133, the court treat a condition necessarily implied from the terms of the contract as equivalent to an express agreement that no action shall be brought until the award is obtained. As has been many times pointed out, it is always a question of construction. Whatever the language may be, if the intention of the parties is sufficiently ap parent, effect will be given to it.

The supreme court, in Hamilton v. Liverpool, L. & G. Ins. Co., founds its decision upon the principle adopted and applied in U. S. v. Robeson, 9 Pet. 319, and Railroad Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035. In the first of these cases the amount of compensation was made to depend on the certificate of an officer in the military serv ice, and in the second upon the certificate of an engineer designated "to prevent all disputes." And, indeed, it is difficult to find much difference between such cases and the present. There could be no doubt that, notwithstanding the reference in the contract, in those and the like cases it would have been perfectly competent for the parties to have agreed upon the subject, and thus have dispensed with the reference, so that, in legal effect, the stipulation comes to about the same thing as here.

It devolved, therefore, upon the plaintiff (below) when notified that the amount of his loss was disputed, to obtain an appraisal of the value and damage before he could demand payment of the loss, unless the company expressly or by implication excused it. It was held in Carroll v. Insurance Co., 72 Cal. 297, 13 Pac. 863, that a dec