·$30 FEDERAL REPORTER. ‘
It is further claimed by the plaintiff that the letter of the state
agent to the assured estops the company from disputing the fact that
the policy had not lapsed. But the policy expressly provides that no
person except the president or secretary is authorized to make or
waive contracts. The agent had no authority to put a construction
upon this contract different from that which the law puts upon it.
Upon the whole, we have come to the conclusion that the plaintiff
is entitled to a judgment for $50, without costs, and as there was no
tender made of the amount, no costs can be awarded to the defend-
· ant.
Cnossmw v. Commcrrcur Fran Ins. Co.
(Oircuit Court, D. Massachusetts. April 6, 1886.)
Frm: INBURANCE—POLICY—PROVISION ron A1am·ra.vrroN—Connxrroiv PREUED·
mltilprovision in a policy of fire insurance that in case any dilference of opin-
ion shall arise as to the amount of loss it shall be referre to arbitrators to be
chosen as therein directed is not a condition precedent to a recovery fora
loss. or to any proof on the trial of the amount of the loss}
At Law.
Gaston rt Whitney, A. French, and G. F. Williams, for plaintiff.
J. D. Bryant and W. G. Russell, for defendants.
CARPENTER, J. This is an action at law on a policy of hre in-
surance. In advance of the trial, and from considerations of con-
venience, counsel have been heard to argue certain questions which
will arise on the trial, in order that they may be provisionally deter-
mined. The same questions will also arise in the case of Reed v.
Fire Ins. Oo. of Philadelphia, and counsel therein have also been
heard-to argue those questions. The policies in question contain
the following provisions:
"In case of any loss or damage the company, within sixty days after the
insured shall have submitted a statement as provided in the preceding clause.
shall either pay the amount for which it shall be liable or replace the prop-
erty, " etc. "In case any difference of opinion shall arise as to the amount of
loss under this policy, it is mutually agreed that the said loss shall be referred
to three disinterested men, the company and the insured each choosing one
out of three persons to be named by the other, and the third being selected
by the two so chosen: provided, that neither party shall be required to choose
or accept any person who has served as a referee in any like case within four
months; and the decision of a majority of said referees in writing shall be
rinal and binding on the parties."
At the trial of these causes evidence will be offered tending to show
the amount of loss under the policy, but such evidence so oifered will
1See note at end of case.
 '