the breach of condition continues if the loss was not due in any degree to breach of the condition.39 Such a construction prevents the condition from working a penalty or forfeiture, but it must be confessed with some straining of the meaning of the English language. In a recent decision the Supreme Court of Maine 40 thus summarized the matter: "An examination of the authorities reveals the fact that in some states the courts have held that the breach of these conditions does not render the policy void but merely suspends its operation, and when the breach ceases, the policy again attaches. They make it a case of suspended animation rather than of death. But it would seem that in order to do this they ignore the plain words of the contract and seek to reach a conclusion which under the circumstances might seem fairer to the assured, working out what they conceive to be 'substantial justice.' "The reasons given for these decisions do not commend themselves to our judgment. In some cases the later decisions are based upon earlier ones arising under a different form of policy where the temporary suspension was expressly provided for, but the distinction is not noted, or, if noted, the earlier is followed, notwithstanding the changed contract." 41 39 Putnam v. Insurance Co., 4 Fed. 753; Schloss v. Westchester Fire Ins. Co., 141 Ala. 566, 37 So. 701, 109 Am. St. Rep. 58; Athens Insurance Co. v. Toney, 1 Ga. App. 492, 57 S. E. 1013; Traders' Insurance Co. v. Catling, 163 Ill. 256, 45 N. E. 255; Born v. Insurance Co., 110 Ia. 379, 81 N. W. 676, 80 Am. St. Rep. 300, 120 Ia. 299, 94 N. W. 849; Phoenix Insurance Co. v. Lawrence, 4 Metc. (Ky.) 9, 81 Am. Dec. 521; Germania Fire Ins. Co. v. Turley, 167 Ky. 57, 179 S. W. 1059; dower v. Insurance Co., 19 La. 28, 36 Am. Dec. 665; Lane v. Insurance Co., 12 Me. 44, 28 Am. Dec. 150; Worthington v. Bearse, 12 Allen, 382, 90 Am. Dec. 152; Hinckley v. Insurance Co., 140 Mass. 38, 1 N. E. 737, 54 Am. Rep. 445; Insurance Co. v. Pitts, 88 Miss. 587, 41 So. 5, 117 Am. St. Rep. 756, 7 L. R. A. (N. S.) 627; State Insurance Co. v. Schreck, 27 Neb. 527, 43 N. W. 340, 6 L. R. A. 524, 20 Am. St. Rep. 696; Johansen v. Insurance Co., 54 Neb. 548, 74 N. W. 866; Garrison v. Insurance Co., 56 N. J. L. 235, 28 Atl. 8; Tompkins v. Insurance Co., 22 N. Y. App. Div. 380, 49 N. Y. S. 184; Cottingham v. Maryland Motor Car Ins. Co., 168 N. C. 259, 84 S. E. 274, L. R. A. 1915 D. 344; Mutual Fire Insurance Co. v. Coatesville, 80 Pa. 407; Warehouse Co. v. Insurance Co., 76 S. C. 76, 56 S. E. 654, 10 L. R. A. (N. S.) 736, 121 Am. St. Rep. 941; Silver v. Assurance Corp., 61 Wash. 593, 112 Pac. 666. 40 Dolliver v. Granite State Fire Ins. Co., 111 Me. 275, 89 Atl. 8, 50 L. R. A. (N. S.) 1106. 41 The court continues: "For in § 763. Waiver after loss. If an insurer after a loss has taken place, for which the insurer is not liable, should promise to pay the loss, there is no consideration for the promise. If the reason why the insurer is not stance, three early cases are often cited as authority for the doctrine of revivification, viz.: Lounsbury v. Insurance Co., 8 Conn. 459, 21 Am. Dec. 686; Phoenix Insurance Co. v. Lawrence, 4 Metc. (Ky.) 9, 81 Am. Dec. 521, and United States F. & M. Insurance Co. v. Kimberly, 34 Md. 224, 6 Am. Rep. 325, but in each of them the policy provided, not that it should be void in case the property were used contrary to the conditions specified, but that 'so long as the same shall be so appropriated, applied or used, these presents shall cease and be of no effect.' It is obvious that under that plain language the policy was suspended by its own terms, but when that language was abandoned and it was provided that the policy should be 'void,' it is difficult to see how these early decisions form any precedent in favor of the doctrine of suspension. In fact they are authorities against it. Yet these decisions among others are cited as authorities in Athens Mutual Insurance Co. v. Toney, 1 Ga. App. 492, 57 S. E. 1013, one of the more recent cases that adopt the theory of suspension and revivification. "Along the same line are the decisions in Illinois. The earliest case on this subject in that state, and the one often cited by that court as the leading case, is New England F. & M. Ins. Co. v. Wetmore, 32 Ill. 221. "But the policy in that case provided, as in the other early cases before referred to, that if the premises should be appropriated to any prohibited use then 'so long as the same shall be so appropriated, applied, or used, these presents shall cease and be of no force or effect.' . . . "But following this the Illinois court has extended the doctrine even to cases where the policy contains the word 'void,' as in Germania Fire Ins. Co. v. Klewer, 129 Ill. 599, 22 N. E. 489, and Traders' Insurance Co. v. Catlin, 163 Ill. 256, 45 N. E. 255, 35 L. R. A. 595. "In Germania Fire Ins. Co. v. Klewer, supra, the court went so far as to hold that while the policy provided that it should be void in case of other insurance existing at the time the policy was taken out, the legal effect was, not to avoid the second policy, the one in suit, but to suspend it until the expiration of the prior policy and then it would come into full force. "Our court has squarely rejected such a doctrine in a case arising under the same clause, and presenting the same point. Bigelow v. Insurance Co., 94 Me. 39, 46 Atl. 808. The opinion concludes: 'By the express terms of the policy in suit, the defendant company is absolved from all liability thereunder.' To the same effect are Jersey City Insurance Co. v. Nichol, 35 N. J. Eq. 291, 40 Am. Rep. 625; Georgia Home Ins. Company v. Rosenfield, 95 Fed. 358, 37 C. C. A. 96, and Carleton v. Insurance Co., 109 Me. 79, 82 Atl. 649. . "In Athens Mutual Ins. Co. v. Toney, supra, after citing the early decisions before referred to and others including decisions from Illinois, the court say: 'We place our decision squarely on the proposition that the violation of the condition as to vacancy in this case in no wise contributed to the loss. The increased hazard existed. while the house was vacant, but when the house was reoccupied the danger liable is because of breach of some condition prior to the loss, which has not increased the risk, or at least has not contributed to the loss, it may be argued that the excuse is purely technical and that the new promise should have the same efficacy as a promise to pay a debt barred by the Statute of Limitations, or by discharge in bankruptcy. These supposed analogies are, however, exceptional cases. They do not represent the general rule, and the exception has, in the main, been confined to cases where at one time there was an enforceable debt. Moreover, there is rarely a true promise made to pay such a loss. Courts which define a waiver as an intentional surrender of a known right will certainly have difficulty in finding an intention on the part of an insurance company to subject itself to an obligation to pay a loss for which it is not liable, without receiving any return. Even if such a promise were made, it would seem beyond the powers of an officer of a corporation and even beyond that of the directors to agree to give away corporate property in this way. In jurisdictions where the insurer is required to surrender the portion of the premium relating to so much of the term as was subsequent to the breach of condition in order to avoid future liability on the policy,42 the doctrine is not generally applied where the insurer first learns of the breach after a loss has occurred.43 But even here it has been suggested that "the company might prefer to keep the premium, waive the condition, and pay the loss," " certainly not a very probable hypothesis. from vacancy terminated, and the policy again attached and became of binding effect, and the company was liable for the loss.' The same reason is given in Born v. Insurance Co., 110 Iowa, 379, 81 N. W. 676, 80 Am. St. Rep. 300, when construing the clause against incumbrance, and in Insurance Company v. Pitts, 88 Miss. 587, 117 Am. St. Rep. 756, 41 So. 5, 7 L. R. A. (N. S.) 627, when construing the clause as to vacancy. "Here again our court has taken the directly opposite view and has rejected the doctrine that the effect of vacancy, under the present form of policy depends upon the increase of risk.” 42 See supra, § 757. 43 Goorberg v. Western Assurance Co., 150 Cal. 510, 89 Pac. 130, 10 L. R. A. (N. S.) 876; Ætna Ins. Co. v. Mount, 90 Miss. 642, 44 So. 162, 15 L. R. A. (N. S.) 471. 44 Scott v. Liverpool, etc., Ins. Co., 102 S. Car. 115, 86 S. E. 484, 488. The fundamental error in this decision is in holding that the duty was on the company to return the premium to escape liability, rather than on the insured to demand a return. The error was the more glaring because the policy in terms provided that "the unearned portion [of the premium] shall be returned on surrender of this policy." The insurer's excuse, however, may be nothing which happened before loss, but a failure on the part of the insured to comply with some condition concerning proof of loss. A condition of this latter sort may no doubt be waived by conduct leading the insured to fail to perform the condition which otherwise he might, and presumably would have done.45 But where the insured has already failed to comply with the conditions of the policy regarding proof, and the time has elapsed within which compliance is possible, a new promise by the insurer falls within the same principle as a promise to pay a loss for which the insurer is not liable because of a breach of condition before loss. Though such a promise unsupported by consideration or promissory estoppel would be enforced by few courts, many decisions show a disposition to seize upon slight circumstances of estoppel as a basis for enforcing the promise. § 764. Requesting proof of loss or appraisal. The effect of accepting defective proofs of loss when no condition of the policy had been broken previously has been considered in an earlier section; 46 but even when the insured has forfeited his rights before loss, if the insurer thereafter demands proofs of loss or an examination, it has been held that he is precluded thereby from setting up any ground of forfeiture known to him when he made the demand.47 Such de 45 Hansell-Elcock Co. v. Frankfort &c. Ins. Co., 177 Ill. App. 500; Farmers' Handy Wagon v. Casualty Co. of America (Ia.), 167 N. W. 204; Lusk v. American Central Ins. Co., 80 W. Va. 39, 91 S. E. 1078; and see infra, §767. 46 §744. "Planters' Insurance Co. v. Loyd, 67 Ark. 584, 56 S. W. 44, 77 Am. St. Rep. 136; Silverberg v. Phenix Ins. Co., 67 Cal. 36, 7 Pac. 38 (see also Frank v. New Amsterdam Casualty Co., 175 Cal. 293, 165 Pac. 927); Smith v. St. Paul &c. Ins. Co., 3 Dak. 80, 13 N. W. 355; Queen Insurance Co. v. Patterson Drug Co., 73 Fla. 665, 74 So. 807, L. R. A. 1917, D. 1091; Ger man Fire Ins. Co. v. Grunert, 112 Ill. 68; Replogle v. American Ins. Co., 132 Ind. 360, 31 N. E. 947; Corson v. Anchor Mut. F. Ins. Co., 113 Iowa, 641, 85 N. W. 806; Petroff v. Equity F. Ins. Co. (Ia.), 167 N. W. 660; Peabody v. Fraternal Accident Assoc., 89 Me. 96, 35 Atl. 1020; Maxwell v. Dirigo Mut. F. Ins. Co. (Me., 1918), 104 Atl. 812; Walter v. Mutual City &c. Ins. Co., 120 Mich. 35, 78 N. W. 1011; Veenstra v. Farmers' Mut. F. Ins. Co., 195 Mich. 55, 161 N. W. 824 (cf. Wilms v. New Hampshire F. Ins. Co., 194 Mich. 656, 161 N. W. 940); Crenshaw v. Pacific &c. Ins. Co., 71 Mo. App. 42; Home Ins. Co. v. Phelps, 51 Neb. 623, 71 N. W. 303; Titus v. cisions lose sight of the fact that this is not a case of election where a party cannot take inconsistent attitudes, but a case of subjecting the insured gratuitously to a new liability with no compensating advantage. There is no rule, recognized as of general application in the law of contracts which would prohibit a man from saying first-"I think that I will make you a present by paying you that insurance for which I am not bound;" and afterwards saying "I have concluded that I will not make the payment." 48 Further, the act of demanding proofs does not involve, as matter of fact, any promise to pay the loss, even if such a promise were enforceable. It is perfectly reasonable for an insurance company to demand proofs and yet reserve for later consideration the question whether it will pay the policy. In many of the decisions where the insurer was held liable, some circumstances involving trouble or expense to the insured besides the original demand of proof of loss was relied upon, such as demanding further proofs, or making an examination, or demanding an appraisal. That such trivial circumstances can justify enforcement of the policy cannot be admitted. The case is not similar to cases of excusing the promisee from a condition, or from an obligation, the time for performing which had not then arrived.49 Some Glens Falls Ins. Co., 81 N. Y. 410; McNally v. Phoenix Ins. Co., 137 N. Y. 389, 33 N. E. 475; Walker v. Phoenix Ins. Co., 156 N. Y. 628, 632, 51 N. E. 392; Grubbs v. North Carolina Home Ins. Co., 108 N. C. 472, 13 S. E. 236, 23 Am. St. Rep. 62; Beauchamp v. Retail Merchants' &c. F. Ins. Co., 38 N. Dak. 483, 165 N. W. 545; Phoenix Assurance Co. v. Munger &c. Mfg. Co. (Tex. Civ. App.), 49 S. W. 271; Georgia Home Ins. Co. v. Goode, 95 Va. 751, 30 S. E. 366; Cannon v. Home Ins. Co., 53 Wis. 585, 11 N. W. 11; Oshkosh Gaslight Co. v. Germania F. Ins. Co., 71 Wis. 454, 37 N. W. 819, 5 Am. St. Rep. 233. See also Southern States F. Ins. Co. v. Kronenberg (Ala.), 74 So. 63. 48 C. F. Adams Co. v. Helman, 58 Ind. App. 394, 400, 106 N. E. 733. 49 The following quotations illustrate the attitude of perhaps the majority of American courts (from Cox v. The American Insurance Co., 184 Ill. App. 419, 424):— "The collection of the note of itself will not constitute a waiver of the forfeiture, for the reason that the policy provides that the collection of the note by legal process, or otherwise, shall in no case create any liability against the company for loss occurring while the assured was in default (Schimp v. Cedar Rapids Insurance Co., 124 Ill. 354); but the sending an adjuster to negotiate with the assured, and the adjuster going and discussing the loss with defendant in error, and placing valuations on the various items of the list of personal property prepared by defendant in error, when a managing |