This appeal raises the question whether the policies of the defendant were void by reason of the fact that the plaintiff the Scottish Eire Insurance Company failed to retain $750 of insurance on the identical property insured by the defendant. It is plain, as it appears to us, that defendant must have known all along that the plaintiff had not retained *489$750 of insurance in eacb case or in either case. We do not see liow it was possible to do so, as the total insurance was only $1,900, whereas if plaintiff had complied with the provision as to the retention of insurance, it must have amounted to $2,900 under the two policies, as the clause was inserted in each of the policies. It may be that the amount to be retained was intended to be $250, instead of $750, but it makes no difference how this is, as the defendant is charged with notice that the plaintiff had not complied with the stipulation. This is a waiver of it. It was held in Hornthal v. Insurance Co., 88 N. C., 71, that a material fact stated as to additional insurance on the same property insured by defendant, with knowledge of its agent that the fact was not truly stated, was a waiver of the requirement prohibiting other insurance without the written consent of the company, citing Insurance Co. v. Wilson, 13 Wall. (U. S.), 222. And in a case where there' had been a substitution of one company for another as an insurer, or one of the insurers, with the knowledge of the defendant, through its agent, of the fact, and without any objection thereafter, it was held to be a waiver of the change in the insurance and the requirement that it should have notice thereof (Collins v. Insurance Co., 79 N. C., 279), the Court saying, by Justice Beale: “The breach of any condition in the policy as against an increase of risk or the keeping of certain hazardous goods, or indeed the violation of any of the conditions of the policy may be waived by the insurer, and a waiver may be implied from the acts and conduct of the insurer after knowledge that such conditions have been broken.” Argall v. Insurance Co., 84 N. C., 355, which holds that a breach of a condition in the policy will not avoid it, if the insurer has knowledge thereof, and does not object, in which case the breach is considered as waived.
The defendant further objects to the form of some of the issues, but as they can be reformed, if required, at the next trial, it is not necessary to consider this exception, except as to one of the issues, that is, the third. Defendant objects to this issue because it does not include any inquiry as to the amount of the actual loss or damage to the identical property insured. *490Tbe third issue may not be objectionable for this reason, but there should be an issue and a finding as to the actual loss of the Scottish Eire Insurance Company. The right of recovery is based upon a loss by .it. There is no issue bearing upon this question, and we doubt if there is any evidence of the fact of loss. But actual loss must be shown, as the reinsurance is as much a contract of indemnity in this respect as the original insurance. “In ordinary cases of reinsurance the reinsured, in order to recover on the contract, is obliged to prove the subject at risk and the loss thereof in the same manner as if the first insured were the plaintiff and the action were upon the original policy. The reinsured must show that a claim exists against him for the loss, and the claim is valid. Where the reinsured has paid the loss he cannot by showing the mere fact of payment establish a sufficient proof of the loss and thereby place upon the reinsurer the burden of showing that the loss was wrongfully paid.' In respect to these requirements, no distinction exists between reinsurance and original insurance.” 24 Am. and Eng. Enc. of Law (2 Ed.), 263; R. R. v. Insurance Co., 98 Mass., 420; 117 U. S., 323, and cases cited; Insurance Co. v. Telfair, 45 App. Div. (N. Y.), 564. And again: “In ascertaining the amount recoverable on the contract of reinsurance, the amount which the reinsured has actually paid to discharge his liability to the original insured is not material, unless, of course, the contract of reinsurance otherwise provides; in brief, the material inquiry is, not what the reinsured has paid, .but what he has become liable to pay by reason of the loss.” 24 Am. and Eng. Enc. of Law, p. 265. •
It is incumbent on the plaintiff, the insured, in an action on a policy of fire insurance, to prove the amount of his loss or damage, and that it was due to fire within the provisions of the policy, and, except where it is not a valued policy permitted by law, he must prove the value of the property destroyed, or of his interest therein (19 Am. and Eng. Enc., 938, and cases in notes), unless the amount of the loss is admitted.
There was error, therefore, in not having this fact, as to the amount of the loss, found by the jury, and we therefore order *491a new trial in the defendant’s appeal. The policy provides for the method of computing the defendant’s share of the loss, when ascertained.
This appeal was taken to review the court’s ruling, by which the losses alleged to have been paid by plaintiff were confined to those which were sustained under policies No. 12102 and No. 12109, and by which also plaintiff was prevented from showing that it had issued policies of insurance on other property in the building not covered by policies 12102 and 12109. We do not see any error in this ruling, as the two policies, 12102 and T2109, only covered the property therein particularly described, and could not be extended so as to include other property, and the clause in the policy requiring the Scottish Fire Insurance Company to retain a portion of the risk is restricted, by it explicit terms, to insurance upon the identical property described therein. As we have said in defendant’s appeal, the plaintiff was required to prove that the said property, that is, the identical property insured, had been injured or destroyed by fire, and the amount of the loss, in like manner as Miller Sons Company would have been required to do if they had been suing the Scottish Company on their policies, the mere fact that a fire occurred and that plaintiff paid a certain sum to Miller Sons Company not being a sufficient finding upon which "to base a judgment. The proofs of loss are not competent evidence as to the amount of the loss or the value of the property. 19 Am. and Eng. Enc. of Law, 948; Insurance Co. v. Gould, 80 Ill., 388; Rosenberg v. Insurance Co., 209 Pa. St., 336; Neesey v. Insurance Co., 55 Iowa, 604; Insurance Co. v. Doll, 35 Md., 89; Breckinridge v. Insurance Co., 87 Mo., 62. The proof is only evidence of the fact that it was furnished to the company.
The policies 63689 and 63690 of the defendant reinsured the property covered by policies 12102 and 12109, which had been previously issued by the plaintiff Scottish Fire Insurance Company to Miller Sons Company, and it was only for the loss *492of this property that defendant contracted to be liable to tbe plaintiff when tbe reinsurance was effected, and tbe inquiry was properly confined to it by tbe court.