this was in December, 1885, five months before his right to sue was extinguished. Certainly after that time nothing was said or done by either company to lead the insured to believe that payment without suit was intended. In this connection the case of Garido v. Insurance Co., (Cal.) 8 Pac. Rep. 512, is important. In this case the year’s limitation expired February 15, 1881. Negotiations for settlement were continued until January 21, 1881, when insured was informed that the company would not pay. In answer to the claim of waiver, the court said that he had ample time in which to bring his action after the company had ceased to lead him to believe that suit would not be necessary. It will be noticed that in that case the insured had only twenty-five days left, whereas in the case at bar he had five months. To same effect is Garretson v. Insurance Co., (Iowa,) 21 N. W. Rep. 781. There is nothing in the sickness of the insured and his family to excuse his delay. In fact, none even of the statutory exceptions are applicable to a limitation by contract, and the time runs on in spite of them. O’Laughlin v. Insurance Co., 11 Fed. Rep. 280; Williams v. Insurance Co., 20 Vt. 222; Suggs v. Insurance Co., (Tex.) 98. W. Rep. 676; Wilkinson v. Insurance Co., 72 N. Y. 500; Riddlesbarger v. Insurance Co., 7 Wall. 386.
No question is made as to the validity of the limitation clause in the policy. Such provisions are valid in the absence of a statute. This is settled law. Our statute relates to such provisions (section 3582, Comp. Laws;) but it is conceded that the statute has no application to the facts of this case, because the contract was a Minnesota contract, insuring property there, made there, and to be performed there. The limitation was valid in that state, and.it in terms extinguished the right, and did not merely bar the remedy. May, Ins. § 432; Williams v. Insurance Co., 20 Vt. 222; Suggs v. Insurance Co., (Tex.) 9 S. W. Rep. 676.
As the plaintiff may be able on a new trial to show that the limitation was waived, we will not direct judgment against him, but reverse the judgment of the district court, and order a new trial. All concur.
Wallin, J., having been of counsel, did not sit in the above
