16 rznmmn nnrosrau.
compel the plaintid to commence sooner than he otherwise would be
required, or that the limitation of 12 months would thereby'com-
mence to run, as against the plaintiff, before the previous period of
60 days had expired.
The defendant also contends now, upon the proof, that the suit is
barred, even allowing that the 12 months did not commence to run
until after the expiration of the 60 days, because it appears that the
° notice and proof of loss were made as early after the fire as Febru-
ary 16th. The evidence in the case consists of the testimony of the
plaintiffs, Aaron and Ben Lurch, the defendant's Oregon manager,
Mr. George L. Story, and its traveling agent, D. B. Bush, and sun-
dry exhibts, consisting of prior policies of insurance on this property
and letters and documents relating thereto. From these proofs and
the pleadings it satisfactorily appears that the property was destroyed
by fire on February 14, 1882, and the loss adjusted by the defendant
A within a few days, and not exceeding a week, thereafter, at $900,and
that on March 23d the defendant gave notice to the plaintiff that it
declined to pay the loss because it had ascertained at and since the
adjustment that the plaintiff had no interest in the property. Aaron
and Ben Lurch both testify that they gave notice of the loss on the
next day thereafter, and that within a week, the agent, Bush, was at
Cottage Grove and adjusted the same. Bush swears that he was
there and made the adjustment on February 16th, and as he speaks
positively, and from written memoranda, this is probably the fact.
The plaintiff does not appear to have had anything to do with the
business personally, and knows nothing about it, except the offer to
refund the premium in Lurch’s store when he and they declined it--
he saying that he had nothing to do with it. I
But taking the statement most favorable to the plaintiff on this
point, and assuming that a full week elapsed before the adjustment,
which necessarily included notice and proof of loss, or waiver of the
r same by defendant, the period of 60 days commenced to run from
and after February 21st, and expired on April 22d. Within the next
12 months this suit should have been commenced, whereas it was de-
layed until six days thereafter. The plaintiff claims, however, that
the 60 days did not commence to run until Bush returned to Cottage
Grove and notined the plaintiff on March 23d that the defendant
would not pay the loss. But according to the language of the policy
the 60 days is to be counted from the giving of notice and proof of
loss, which was either made or waived before the adjustment, and not
the refusal of payment. Indeed, this 60 days is manifestly given to
the defendant for the very purpose of ascertaining and determining
whether, admitting the loss or the sufficiency of the notice and proof
thereof, it is bound to or will pay the claim of the assured. Nor is
there any ground to claim that the matter was kept open from the
hrst to the ·second visit of_Bush to Cottage Grove for further proof in
any particular. The proof of loss and ownership was made on the