1. A prorating clause in a fire insurance policy reading: "This company shall not be liable under this policy for a greater proportion of any loss by, and expense of removal from premises endangered by, fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property," held, to entitle the insurer to prorate with another policy covering the same property, but in the name of a former owner, never formally canceled, although for lack of proper transfer such other insurance was not available to the holders of the policy now in suit.
2. The holders of the policy in suit having made proof of loss based on prorating with another policy on which they were not entitled to collect, and having accepted the draft of the defendant company on that basis, they are not entitled to claim more than the amount of such draft, although it was not cashed and was tendered back to the company after some months had elapsed and as a preliminary to the present suit.
PER CURIAM.
The judgment under review will be affirmed, for the reasons stated in the opinion of Judge Jess in the court below.
For affirmance — THE CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, JJ. 13.
For reversal — None.