Francis

This is an appeal from a judgment for compensation of loss by fire which judgment was rendered pursuant to the terms of an insurance policy. It is claimed liability under this policy was waived by the insured by failure on his part to supply the company with sworn proof of loss as required by the contract.

The plaintiff Western owned a store building, together with fixtures and stock of merchandise at Ceres. The merchandise was subject to a chattel mortgage to secure the loan of $2,000 which was held by the plaintiff Francis.

Except for this mortgage, Francis had no interest in the property. Russell & Robbins are insurance brokers who maintain their office at Modesto. They were agents in Stanislaus County for the defendant Iowa National Fire Insurance Company of Des Moines. The defendant admits this agency but denies they had authority to adjust claims of loss in behalf of the company, or to waive the furnishing of proof of loss by the insured as required by the terms of the policy.

December 29, 1926, the agent Russell visited the store of plaintiff Western and took his application for $1500 insurance on the fixtures and stock of merchandise. The agent then had full knowledge…