to the contract expressly agreed that the assertion of one right should not exclude the other, this agreement should be enforced. Still more obviously this is true where, as in the case under discussion the only choice presented to the insurer is whether he will pay the loss without receiving any compensating advantage, or whether he will refuse to pay.61

§ 766. Whether a breach of condition avoids an entire policy insuring several articles.

In a recent California decision,62 Sloss, J., speaking for the court, thus stated the law:-"The courts of a number of states have laid down the rule accepted by the trial court in the case at bar,—namely, that where the property insured consists of different items which are separately valued or insured for separate amounts, the contract is divisible, and a breach of warranty or condition as to one item will not affect the insurance on the remainder of the property, even though the premium be entire.63 On the other hand, there are many cases

61 A non-waiver agreement was disregarded in Phoenix Assurance Co. v. Munger, etc., Mfg. Co. (Tex. Civ. App.), 49 S. W. 271. See also Pennsylvania Fire Ins. Co. v. Draper, 187 Ala. 103, 65 So. 923; Queen Ins. Co. v. Patterson Drug Co., 73 Fla. 665, 74 So. 807, L. R. A. 1917 D. 1091; Palatine Ins. Co. v. Whitfield, 73 Fla. 716, 74 So. 869; Corson v. Mutual Fire Ins. Co., 113 Ia. 641, 85 N. W. 806; Petroff v. Equity F. Ins. Co. (Ia.), 167 N. W. 660; Gibson Electric Co. v. Liverpool, etc., Ins. Co., 159 N. Y. 418, 426, 54 N. E. 23; Beauchamp v. Retail Merchants', etc., F. Ins. Co. (N. Dak.), 165 N. W. 545. Some courts restrict the meaning of the agreement to conditions essential to the life of the policy prior to loss, and do not apply it to stipulations required to be performed thereafter. Lusk v. American Central Ins. Co., 80 W. Va. 39, 91 S. E. 1078, and cases cited.

62 Goorberg v. Western Assurance Co., 150 Cal. 510, 513, 517, 89 Pac. 130, 10 L. R. A. (N. S.) 876.

63 Citing: Merrill v. Agricultural Ins. Co., 73 N. Y. 452, 29 Am. Rep. 184; Schuster v. Dutchess County Mut. Ins. Co., 102 N. Y. 260, 6 N. E. 406; Phoenix Ins. Co. v. Lawrence, 4 Met. (Ky.) 9, 81 Am. Dec. 521; Continental Ins. Co. v. Ward, 50 Kan. 346, 31 Pac. 1079; State Ins. Co. v. Schreck, 27 Neb. 527, 20 Am. St. Rep. 696, 43 N. W. 340, 6 L. R. A. 524; Commercial Ins. Co. v. Spankneble, 52 Ill. 53, 4 Am. Rep. 582; Loehner v. Home Mut. Ins. Co., 17 Mo. 247; Sullivan v. Hartford Fire Ins. Co., 89 Tex. 665, 36 S. W. 73; Manchester Fire Assur. Co. v. Feibelman, 118 Ala. 308, 23 So. 759; Fireman's Fund Ins. Co. v. Barker, 6 Colo. App. 535, 41 Pac. 513; Clark v. New England Mut. Fire Ins. Co., 6 Cush. 342, 53 Am. Dec. 44; Bullman v. North British, etc., Ins. Co., 159 Mass. 118, 34 N. E. 169; Wright v. Fire Ins. Co., 12 Mont. 474, 31 Pac. 87; Coleman v. New Orleans Ins. Co., 49 Ohio St. 310, 31 N. E. 279, 16 L. R. A. 174, 34 Am. St. Rep. 565; Light v. Greenwich Ins. Co., 105 Tenn. 480, 58

holding that such contracts are entire, and that a breach of any condition or warranty vitiates the whole insurance, most of these decisions basing their conclusion on the ground that the premium was a single or gross sum.64 There is still another line of cases which take a middle ground between the extreme doctrines above stated and hold that the question of the severability of the contract in such cases depends upon the nature of the risk,―i. e., that where the property is so situated that the risk on one item cannot be affected without affecting the risk on the other items, the policy must be regarded as entire; but where the property is so situated that the risk on each item is separate and distinct from the risk on the other items, so that what affects the risk on one item does not affect the risk on the others, the policy must be regarded as severable.65 In our opinion, the rule declared in the cases last cited is supported by reason and tends to produce a just result. Whether a contract is entire or severable is a question of intention, to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time

S. W. 851; Connecticut Fire Ins. Co. v.
Tilley, 88 Va. 1024, 29 Am. St. Rep.
770, 14 S. E. 851; Quarrier v. Peabody
Ins. Co., 10 W. Va. 507, 27 Am. Rep.
582. See also Downey v. German
Alliance Ins. Co., 252 Fed. 701, 164
C. C. A. 541; Fisher v. Sun Ins. Co., 74
W. Va. 694, 83 S. E. 729.

"Citing Gottsman v. Pennsylvania Ins. Co., 56 Pa. 210, 94 Am. Dec. 55; Day v. Charter Oak F. & M. Ins. Co., 51 Me. 91; Plath v. Minnesota Farmers' Mut. Fire Ins. Assn., 23 Minn. 479, 23 Am. Rep. 697; Garver v. Hawkeye Ins. Co., 69 Ia. 202, 28 N. W. 555; Cuthbertson v. North Carolina Home Ins. Co., 96 N. C. 480, 2 S. E. 258; Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 33 Atl. 429, 30 L. R. A. 633, 51 Am. St. Rep. 457; McGowan v. People's Mut. Fire Ins., 54 Vt. 211, 41 Am. Rep. 843. Citing: Havens v. Home Ins. Co.,

111 Ind. 90, 12 N. E. 137, 60 Am. Rep. 689; Phoenix Ins. Co. v. Pickel, 119 Ind. 155, 21 N. E. 546, 12 Am. St. Rep. 393; Pickel v. Phoenix Ins. Co., 119 Ind. 291, 21 N. E. 898; Worachek v. New Denmark, etc., Fire Ins. Co., 102 Wis. 88, 78 N. W. 411; Taylor v. Anchor Mutual Fire Ins. Co., 116 Iowa, 625, 88 N. W. 807, 57 L. R. A. 328, 93 Am. St. Rep. 261; Western Assurance Co. v. Stoddard, 88 Ala. 606, 7 So. 379; Republic County, etc., Ins. Co. v. Johnson, 69 Kan. 146, 76 Pac. 419, 105 Am. St. Rep. 157; Hartshorne v. Agricultural Ins. Co., 50 N. J. L. 427, 14 Atl. 615; Brehm Lumber Co. v. Svea Ins. Co., 36 Wash. 520, 79 Pac. 34, 68 L. R. A. 109; Herzog v. Palatine Ins. Co., 36 Wash. 611, 79 Pac. 287; Etna Ins. Co. v. Resh, 44 Mich. 55, 6 N. W. 114, 38 Am. Rep. 228; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959; Baldwin v. Hartford Fire Ins. Co., 60 N. H. 422, 49 Am. Rep. 324.

they contracted.66 In these cases the policy, insuring several classes of property, provides that it shall be void in certain events. In view of the settled rule that any uncertainty or ambiguity in a contract of insurance is to be interpreted most strongly against the insurer, it is proper to say that this language should not be given the effect of avoiding the policy as to every item insured in all cases. Where the warranty or condition which is broken does not affect the risk on certain items, the insurance should not be held to be ineffective as to those items. Such construction would subject the insured to a forfeiture for a cause which had no substantial relation to the interest of the insurer.

"In the foregoing discussion we have laid no stress on the fact that the language of the policy is that 'this entire policy shall be void, if,' etc. In most of the cases cited above the word 'entire' did not appear in the policy in this connection. It has been held (sometimes even in jurisdictions where separate valuations are ordinarily regarded as rendering the contracts divisible) that the inclusion of this word makes the contract entire and indivisible.67 But there are also cases holding, in effect, that no valid distinction can be drawn between the words 'this policy shall be void' and 'this entire policy shall be void.' 68 In view of our conclusion that the policy in question is for other reasons an entire contract, it is not necessary in this case to express any opinion as to the effect of the use of the word 'entire' in a policy which in the absence of such word would be treated as divisible." To this statement it may be added that though it be granted that an insurance policy should be construed most strongly against the insurer, it is only by a somewhat strained construction that any part of a

66 Citing: Sterling v. Gregory, 149 Cal. 117, 85 Pac. 305.

67 Citing: Germania Fire Ins. Co. v. Schild, 69 Ohio St. 136, 68 N. E. 706, 100 Am. St. Rep. 663; Germier v. Springfield F. & M. I. Co., 109 La. 341, 33 So. 361; Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 33 Atl. 429, 51 Am. St. Rep. 457, 30 L. R. A. 633; Martin v. Insurance Co. of N. A., 57 N. J. L. 623, 31 Atl. 213; McWilliams

v. Cascade F. & M. I. Co., 7 Wash. 48, 34 Pac. 140.

68 Citing: Kiernan V. Dutchess County Mutual Ins. Co., 150 N. Y. 190, 44 N. E. 698; Fireman's Fund Ins. Co. v. Barker, 6 Colo. App. 535, 41 Pac. 513; Kansas Farmers' Fire Ins. Co. v. Saindon, 53 Kans. 623, 36 Pac. 983; Trabue v. Dwelling House Ins. Co., 121 Mo. 75, 25 S. W. 848, 42 Am. St. Rep. 523, 23 L. R. A. 719.

policy can be saved in such a case as that under discussion; and if "this policy shall be void" and "this entire policy shall be void" mean the same thing, it proves that under both clauses the contract is indivisible, not that in both cases it is divisible.

§ 767. Excuse of conditions by conduct showing that the promisor will not perform even if the condition is performed.

It is an old maxim of the law that it compels no man to do a useless act, and this principle was applied in the time of Coke, if not before, to the case of a conditional promise. If the promisor is not going to keep his promise in any event, it is useless to perform the condition and the promisor becomes liable without such performance.69 So if before the time for the performance of a condition by a promisee, the promisor leads the promisee to stop performance by manifesting himself an intention not to perform on his part, even though the condition is complied with, "it is not necessary for the first to go further and do the nugatory act." 70 The principle finds application in a great variety of contracts. It applies to conditions, the performance of which is not the real exchange for the thing promised. For instance, if an insurance company indicates that it is not going to pay an insurance loss, in any event, the insured

* Mayne's Case, 5 Coke, 20 b. This was an action on an obligation to make a new lease upon the surrender of a certain outstanding lease. To a plea that the promisor had made the surrender impossible by accepting a fine the defendant demurred. It was adjudged for the plaintiff and resolved "that Sir Anthony Mayne had broken his covenant without any surrender made; for by the said fine levied by him for eighty years, he had disabled himself either to take a surrender or to make a new lease, and the law will not force any one to do a thing which would be vain and fruitless . . . and although the lessee in this case, by the words of the indenture, ought to do the first act, namely to make the surrender;

yet when the lessor hath disabled himself not only to take the surrender, but also to make a new lease according to the covenant, for this cause the lessor's covenant is broken without any surrender made."

70 Jones v. Barkley, 2 Doug. 684. See also Ripley v. M'Clure, 4 Exch. 345; Cort v. Ambergate, etc., Ry. Co., 17 Q. B. 127; Columbia Bank v. Hagner, 1 Pet. 455, 7 L. Ed. 219; Allegheny Valley Brick Co. v. C. W. Raymond Co., 219 Fed. 477, 135 C. C. A. 189; Grippo v. Davis, 92 Conn. 693, 104 Atl. 165; Duffy v. Patten, 74 Me. 396; Goeppel v. Kurtz Action Co., 179 N. Y. App. D. 687, 167 N. Y. S. 317.

is excused from compliance with a condition requiring proofs of loss; 71 or requiring arbitration,72 or other preliminary.73

The principle is also applicable where the performance of the condition is the substantial exchange for the performance of the promisor, as in a contract to buy and sell. An anticipatory refusal by either party to perform excuses the other party from the performance or tender of performance which would ordinarily be a condition precedent to the enforcement of liability.74 A manifestation of inability to perform has the same effect.75 The principle is applicable alike to express and to implied conditions. Here, as in the case of prevention," it is