McGRATH
C.J.
The
policy upon which suit is brought contains the following
provisions: "This company shall not be liable beyond the
cash value of the property at the time any loss or damage
occurs, and the loss
or damage shall be ascertained or estimated according to such
actual cash value, with proper deduction for depreciation
however caused, and shall in no event exceed what it would
then cost the insured to repair or replace the same with
material of like kind and quality. Said ascertainment or
estimate shall be made by the insured and this company, or
if they differ, then by appraisers, as hereinafter provided;
and, the amount of loss or damage having been thus
determined, the sum for which this company is liable pursuant
to this policy shall be payable sixty days after due notice,
ascertainment, estimate, and satisfactory proof of the loss
have been received by this company in accordance with the
terms of this policy. It shall be optional, however, with
this company to take all or any part of the articles at such
ascertained or appraised value, and also to repair, rebuild,
or replace the property lost or damaged with other of like
kind and quality within a reasonable time, on giving notice,
within thirty days after the receipt of the proof herein
required, of its intention so to do; but there can be no
abandonment to this company of the property described. *** In
the event of disagreement as to the amount of loss, the same
shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and
this company each selecting one, and the two so chosen shall
first select a competent and disinterested umpire. The
appraisers together shall then estimate and appraise the
loss, stating separately sound value and damage, and, failing
to agree, shall submit their differences to the umpire; and
the award in writing of any two shall be prima facie evidence
of the amount of such loss. The parties thereto shall pay the
appraiser respectively selected by them, and shall bear
equally the expense of the appraisal and umpire. This company
shall not be held to have waived any provision or condition
of this policy, or any forfeiture thereof, by any
requirement, act, or proceeding on its part relating to the
appraisal, or to any examination herein provided for; and the
loss shall not become payable until sixty days after the
notice, ascertainment, estimate, and satisfactory proof of
the loss herein required have been received by this company,
including an award by appraisers when appraisal has been
required. *** 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."
The
property insured consisted of a dwelling house. The loss
occurred July 25, 1892. After the fire the company's
agent visited the locality, and had a conversation relative
to the loss. An offer was made by the agent which, in view of
the subsequent correspondence, must be regarded as an offer
of compromise, rather than an acknowledgment of liability on
the part of the company, or an estimate of the amount of the
loss. At this interview, a proposition was made to have an
appraisal, but the company's agent said that he
didn't propose or didn't care to arbitrate the
matter. On August 16, 1892, the company wrote to plaintiff as
follows: "On the 6th inst., instead of receiving a call
from you, I had one from Mr. Van Kleeck, who said he was your
attorney in the matter of your claim under
policy 731,375. That there be no misunderstanding in this
matter, I would remind you that in my conversation with you I
did not state what position the company would take in the
matter, and did neither admit nor deny liability on the part
of the company in your favor. Neither did I in my
conversation with Mr. Van Kleeck admit or deny such
liability. Reserving to the company all its rights under the
policy, I remain." Again, on August 30, the company
wrote: "Yours of the 17th inst. at hand, inclosing
affidavit of David Brock in re claim under policy 731,375.
Whether the policy was valid or void at the time of the fire
I do not wish to be understood as expressing any opinion,
either directly or by implication. In case of a policy void
at time of the fire, no form of affidavit, however fully it
might set forth the facts, would be operative to inject
validity into the claim; whereas, if it were valid at time of
fire, an affidavit in manner and form like the one referred
to would not be a compliance with the requirements of the
policy to which I refer you. As this affidavit, therefore,
could in neither contingency have any force or effect, I
return the same without either demanding or waiving full
compliance on the part of the assured with the requirements
of the policy. Neither admitting or denying liability on the
part of the company, nor waiving or extending any of the
terms, provisions, conditions, or requirements of the policy,
I remain." On September 1, 1892, plaintiff sent on
proofs of loss, and in the letter suggested an appraisal of
the property. On September 9th plaintiff wrote again, asking
for a reply to the letter of the 1st. On September 12th
defendant wrote as follows: "I would say that the
company is willing to have the value of the building at the
time of the fire appraised, as per the terms of the policy,
with the understanding that in so doing it reserves all its
rights in the matter, and that nothing so far done is to be
construed as a waiver of its rights under the policy, nor an
acknowledgment of any liability on its part in favor of Mr.
Brock." On September 13th plaintiff
replied, naming one Callender as appraiser. On September 16th
defendant wrote, objecting to Callender, and saying, "If
you want an appraisal, you must, in accordance with the
policy, select a competent and disinterested man." On
January 12, 1893, plaintiff wrote as follows; "Messrs.
Shepard & Lyon, on inquiry from them yesterday, say that they
have done all, in the insurance matter of David Brock's
claim under policy 731,375
against your company, that they are authorized to do. We have
furnished all information we have in regard to the loss. Mr.
Brock has presented himself for examination under oath, at
your request. It seems to us that the only thing necessary to
make this matter complete is for you to send us draft and
take up your policy. As to the matter of appraisal suggested
to you in ours of September 13th, we desire to say that, so
far as Brock is concerned, he has no desire to insist or
oppose an appraisal. We have waited since that date for you
to act in that matter if you desire so to do. We now say, as
we understand the matter, Brock is entitled to his money, and
if we do not hear from you at once, with draft inclosed, we
shall conclude that you are in possession of some facts which
you conclude are a complete bar to his right to make such
claim. As to such matters, if any, others than us must
decide." In reply defendant wrote: "I would say
that an appraisal was demanded by Mr. Brock, agreed to by the
company with the understanding that it would not in any event
prejudice its rights under the policy, and should not be a
waiver of any of the conditions of the policy, or of a
forfeiture thereof (see the conditions of the policy, lines
92 and 93, Mich. Stand., cited in a former letter to you),
and we have for some time been waiting for Mr. Brock to name
an appraiser,-some person possessing the attributes required
of him by the policy. We are still waiting for Mr. Brock to
name his appraiser, and prefer that he abide by his election
to submit the matter to appraisal, as provided by the
policy." On January 18, 1893, plaintiff wrote nominating
one Huntley as appraiser, and on January 24th
defendant wrote nominating one Hilton, an insurance adjuster
residing at Grand Rapids. On January 24th plaintiff wrote as
follows: "Pursuant to your letter of...
