#### Vina West, Appellee, v. Franklin Fire Insurance Company, Appellant.*

*125Opinion filed November 15, 1923.

Wham & Wham and E. L. Snider, for appellant.

W. L. Keane, for appellee.

*

Received from clerk of Appellate Court, August 8, 1927.

Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant insists that the court erred in refusing to direct a verdict in its favor. It is argued that appellee failed to prove the averment of her declaration that she furnished proof of loss in accordance with the terms of the policy and that the peremptory instruction should have been given for that reason.

The record discloses that'appellant filed special pleas to the effect that appellee was not entitled to recover because she failed to furnish proof of loss. By so doing appellant recognized that it had the burden upon that question and cannot now blame the trial court for so treating it. Appellant offered no proof in support of its said special pleas and is not in a position to claim that the court erred in refusing to direct a verdict.

But even if it should be held that the burden was upon appellee to prove the averment that she furnished proof of loss, yet proof of waiver sustains such an allegation. Waiver need not be specially pleaded. Gray v. Merchants’ Ins. Co. of Newark, 125 Ill. App. 370; German Fire Ins. Co. of Peoria v. Grunert, 112 Ill. 68-76; Continental Life Ins. Co. v. Rogers, 119 Ill. 474. *126Appellant proved that when it learned of the loss an adjuster was sent out to investigate and that upon receipt of his report appellant did all in its power to cancel the policy for a breach of warranty. The record does not disclose the date of the attempted cancellation, but it is quite clear that appellant intended, thereby, to deny all liability. A denial of liability on other grounds is a waiver of proof of loss and of other conditions in the policy. American Central Ins. Co. v. J. B. Henninger & Co., 87 Ill. App. 440. In the state of the pleadings and proof we would not be warranted in assuming that the cancellation of the policy was attempted after the time for furnishing proof of loss had expired.

The policy in question insured appellee’s dwelling for $500 and her barn for the same amount for a period of five years. The rate on each was $5.50 per year, making a total premium of $55. The barn was destroyed but there was no damage to the house. Appellant filed special pleas setting up that appellee made false answers to certain questions in her application with reference to the condition and value of the house and that she warranted said answers to be true. Upon the trial appellant offered to prove those pleas but the court held that the contract was divisible and that even if there were such representations as to the house appellant was not relieved from liability for the loss of the barn.

Counsel contend that the court erred in refusing to allow appellant to make that proof and cite many decisions from the courts of other States, which seem to support them. The courts are in a hopeless conflict on the question. Apparently there are about as many cases on the one side as the other. Counsel for appellant admit that there are some early decisions in this State which hold that the contract of insurance is divisible and that a breach of warranty as to one piece of property covered by the policy would not. avoid the *127contract as to the other property. The following are some of the cases evidently reférred to: Commercial Ins. Co. v. Spankneble, 52 Ill. 53; Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164; German Ins. Co. v. Miller, 39 Ill. App. 633; Dwelling House Ins. Co. v. Butterly, 33 Ill. App. 626.

In view of those decisions and the great conflict on the question in other courts, no useful purpose would he served by an extended discussion of the matter. We are of the opinion that the court did not err in its rulings on evidence in that regard. It is also urged that the court erred in overruling appellant’s motion for a new trial. The motion is not in the bill of exceptions and cannot be considered. It is not sufficient that the clerk, in writing up the judgment, recites the denial of a motion for new trial. People v. Faulkner, 248 Ill. 158.

There being no other errors complained of the judgment is affirmed.

Affirmed.