GAROUTTE, J.
This appeal involves a contract of fire insurance, and the first question to be considered arises upon the sufficiency of the complaint. It appears thereby that the fire occurred June 8, 1896, and that proof of loss was made October 19th thereafter. The contract of insurance was attached to the complaint as an exhibit, and in that exhibit we find the following provisions: "And within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to," etc. And again: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire." In view of these provisions of the policy, does the complaint state a cause of action, proofs having been made some four months after the fire, and the policy requiring such proofs to be made within sixty days thereafter? It will be borne in mind that no attempt is made by the pleader to set out facts constituting a waiver.
Ostrander on Insurance, section 223, citing Wood on Insurance, section 436, and May on Insurance, section 465, says: "The words `forthwith' and `as soon thereafter as possible' are construed to mean the same thing; but when a definite time is specified, as `thirty' or `sixty' days, neglect or delay beyond such time in furnishing proofs will be fatal, if the language of the policy makes the furnishing of proofs within the time designated a condition precedent." Thereupon the author quotes from Owen v. Farmers' Joint Stock Ins. Co., 57 Barb. 521, as follows: "The question presented on this appeal is, whether the omission of plaintiff to deliver a particular account of his loss and damage within ten days after such loss, according to the seventh section of the condition annexed to the policy, is fatal to his right of recovery. Such provision is doubtless a condition precedent, the performance of which by the plaintiff is indispensable to the right of recovery. . . . . Time, too, is the essence of the contract in conditions of this kind, and there is no power in the court to dispense with a condition, or excuse the non-performance of it. It is only when a duty is created by law that a party is excused from performing it, if performance is rendered impossible by act of God, and not when the duty is created by contract." The author thereupon says: "This statement of the law stand undisputed, and is strongly supported by a large number of decisions from the ablest courts in both England and America."
In the investigation of this question we have found a few cases opposed to the foregoing views, notably Kenton Ins. Co. v. Downs, 90 Ky. 236, and Steele v. German Ins. Co., 93 Mich. 81, the latter case being decided by a divided court. The judgment in this latter case turned on the construction given the words "until after" used in the contract of insurance. As to other contracts of insurance which have come before that court wherein the word "unless" was used in the same connection as the words "until after" were used in the Steele case, an opposite conclusion has been declared. In those cases the words "until after" were held to substantially differentiate the facts in the two classes of cases. It would seem to require a microscopic inspection to discover a substantial difference in the meaning of the terms "until after compliance" and "unless the insured shall have fully complied"; yet, in the second class of cases, where the proofs have not been furnished within the time agreed, the right to bring an action is held barred (Gould v. Dwelling House Ins. Co., 90 Mich. 302), while in the first class of cases it is held that the action is not barred. (Steel v. German Ins. Co., supra.) It is quite evident after reading the various decisions of the supreme court of Michigan that this question has caused it considerable trouble. But, upon careful consideration, we are satisfied that the difference in the two forms of expression is unsubstantial, and does not justify contrary conclusions in the two classes of cases.
The policy by direct words says proofs of loss must be furnished within sixty days from the date of the fire. This is the contract between the parties. The period of time provided allows ample opportunity to do the work, and the provision is a most reasonable one. If this requirement of the contract is binding to any extent, if it binding upon the insured to furnish the proofs of loss, then why is it not equally binding upon him to furnish proofs within sixty days? Why should one provision of the requirements be given effect, and not the other? It is not for this court to say that the one provision holds any more of substance than the other. It is conceded by the Michigan court in all its cases that the proofs must be furnished before the action can be brought, and it seems equally clear that they should be furnished within the time specified, or likewise action cannot be brought. As the court has already shown, the great weight of authority is in direct line with these views. The contract is, that the action cannot be brought until after a full compliance by the insured with all the foregoing requirements. One of these requirements demanded the insured to furnish proofs of loss within sixty days from the date of the fire. At the time this complaint was filed the insured had not complied with this requirement of the contract, and the sixty days had long since gone by.
The court instructed the jury as follows: "The matter for the jury to determine in settling the question as to the right of the defendant to claim the loss of the insurance upon the ground that the proofs were not presented is, Were these proofs presented within a reasonable time, the reasonableness of the time to be determined by all the facts and circumstances of the case? If you find that under these facts and circumstances proofs were made within a reasonable time to the insurance company, then it is your duty generally to find in favor of the plaintiffs." In view of what has been said, this instruction is wrong.
It seems unnecessary to discuss the other questions raised by appellant in its brief.
For the foregoing reasons the judgment and order are reversed.
Van Dyke, J., and Harrison, J., concurred.
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