in the sum of $2,500, with interest and costs. The cause was then taken to the United [310] States circuit *court of appeals for the eighth circuit, and that court, on March 26, 1900, affirmed the judgment of the circuit court. 41 C. C. A. 207, 101 Fed. 77. Thereafter, on petition of the defendant company, a writ of certiorari was allowed, in response to which the record and proceedings in the cause were brought to this court. Messrs. Ralph W. Breckenridge and Charles J. Greene argued the cause and filed a brief for petitioner: Mere parol notice of the existence of another policy of insurance was not of itself sufficient to comply with the requirements on the policies sued on. Carpenter v. Providence Washington Ins. Co. 16 Pet. 495, 10 L. ed. 1044; Union Nat. Bank v. German Ins. Co. 34 U. S. App. 397, 18 C. C. A. 203, 71 Fed. 473; United Firemen's Ins. Co. v. Thomas, 47 L. R. A. 450, 27 C. C. A. 42, 53 U. S. App. 517, 82 Fed. 406, 47 L. R. A. 455, 34 C. C. A. 240, 92 Fed. 127; McMaster v. New York L. Ins. Co. 40 C. C. A. 119, 99 Fed. 856; New York L. Ins. Co. v. McMaster, 30 C. C. A. 532, 57 U. S. App. 638, 87 Fed. 63; Commercial Union Assur. Co. v. Norwood, 57 Kan. 610, 47 Pac. 529; Hartford F. Ins. Co. v. Small, 14 C. C. A. 33, 80 U. S. App. 127, 66 Fed. 490; Merchants' Mut. Ins. Co. v. Lyman, 15 Wall. 664, 21 L. ed. 246; Hutchinson v. Western Ins. Co. 21 Mo. 97, 64 Am. Dec. 218; Rothschild v. American Cent. Ins. Co. 62 Mo. 356; Gardiner v. Piscataquis Mut. F. Ins. Co. 38 Me. 439; Batchelder v. Queen Ins. Co. 135 Mass. 449; Oakes v. Manufacturers' F. & M. Ins. Co. 135 Mass. 248. Where the parties have made certain terms and conditions on which their contract shall continue or terminate, courts may not make a contract for the parties. Their function and duty consist simply in enforcing and carrying out the one actually made. Imperial F. Ins. Co. v. Coos County, 151 U. S. 452, 38 L. ed. 231, 14 Sup. Ct. Rep. 379; Mack v. Rochester German Ins. Co. 106 N. Y. 560, 13 N. E. 343; Georgia Home Ins. Co. v. Rosenfield, 37 C. C. A. 96, 95 Fed. 358; Union Cent. L. Ins. Co. v. Berlin, 41 C. C. A. 592, 101 Fed. 673; Barrett v. Union Mut. Ins. Co. 7 Cush. 175. The authority of the agent who issued the policy in suit was limited and the insured was notified of the restrictions upon the agent's authority, and the measure of his power, and the manner in which only it could be exercised, by the policy. Quinlan v. Providence Washington Ins. Co. 133 N. Y. 356, 31 N. E. 31; Moore v. Hanover F. Ins. Co. 141 N. Y. 219, 36 N. E. 191. An agent to receive premiums and issue policies is not, independently of any evi L. R. A. 563, and German Ins. Co. v. Gray (Kan.) 8 L. R. A. 70. As to the effect of agent's filling in untrue answers in application for insurance without dence showing that he ha a much large authority than this, empowered to waive conditions so important that parties have seen fit to incorporate them into their contract. Kyte v. Commercial Union Assur. Co. 144 Mass. 43, 10 N. L. 18; Ruthven Bros. v. American F. Ins. Co. 92 Iowa, 316, 60 N. W. 663; Smith v. Niagara F. Ins. Co. 60 Vt. 682, 1 L. R. A. 216, 15 Atl. 353; Cleav er v. Traders' Ins. Co. 65 Mich. 527, 32 N. W. 660, 71 Mich. 414, 39 N. W. 571; Merchants' Ins. Co. v. New Mexico Lumber Co. 10 Colo. App. 223, 51 Pac. 174; New York L. Ins. Co. v. Fletcher, 117 U. S. 519, 29 L. ed. 934, 6 Sup. Ct. Rep. 837; Globe Mut. L. Ins. Co. v. Wolff, 95 U. S. 329, 24 L. ed. 388; Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 240, 24 L. ed. 691. Nor even if the agent had the fullest authority, could the conditions of the policy be waived other than in the manner in which they provide for such waiver. Kyte v. Commercial Union Assur. Co. 144 Mass. 43, 10 N. E. 518; Smith v. Niaga ra F. Ins. Co. 60 Vt. 682, 1 L. R. A. 216, 15 Atl. 353; Gladding v. California Farmers' Mut. F. Ins. Asso. 66 Cal. 6, 4 Pac. 764; Enos v. Sun Ins. Co. 67 Cal. 621, 8 Pac. 379; Northwestern Nat. Ins. Co. v. Mize (Tex. Civ. App.) 34 S. W. 670; Bourgeois V. Northwestern Nat. Ins. Co. 86 Wis. 606, 57 N. W. 347. There can be no waiver prior to or concurrently with the execution and delivery of a contract, of conditions thereof. Å waiver, if any, must be subsequent thereto. Globe Mut. L. Ins. Co. v. Wolff, 95 U. S. 329, 24 L. ed. 388; Thompson v. Knickerbocker L. Ins. Co. 104 U. S. 253, 26 L. ed. 765; Union Mut. Ins. Co. v. Mowry, 96 U. S. 544, 24 L. ed. 674; United Firemen's Ins. Co. v. Thomas, 47 L. R. A. 450, 27 C. C. A. 42, 53 U. S. App. 517, 82 Fed. 406; Girard F. & M. Ins. Co. v. Hebard, 95 Pa. 45; American Credit Indemnity Co. v. Carrollton Furniture Mfg. Co. 36 C. C. A. 671, 95 Fed. 111. The findings of fact leave the question of waiver to be inferred as a matter of law, and the judgment for plaintiff cannot be sustained. Patterson v. United States, 2 Wheat. 221, 4 L. ed. 224; Suydam v. Williamson, 20 How. 427, 15 L. ed. 978; Wesson v. Saline County, 20 C. C. A. 227, 34 U. S. App. 680, 73 Fed. 917; Sneed v. Sabinal Min. & Mill. Co. 20 C. C. A. 230, 34 U. S. App. 688, 73 Fed. 925; Daube v. Philadelphia & R. Coal & I. Co. 23 C. C. A. 420, 46 U. S. App. 591, 77 Fed. 713; United Firemen's Ins. Co. v. Thomas, 47 L. R. A. 450, 27 C. C. A. 42, 53 U. S. App. 517, 82 Fed. 406; Merchants' Ins. Co. v. New Mexico Lumber Co. 10 Colo. App. 223, 51 Pac. 174; Girard F. & M. Ins. Co. v. Hebard, 95 Pa. 45; Hartford F. Ins. Co. v. Small, 14 C. C. A. 33, 30 U. S. App. 127, 66 Fed. 490. knowledge of the insured-see note to Union Mut. L. Ins. Co. v. Wilkinson, 20 L. ed. U. S. 617. Taylor, Mr. Halleck F. Rose argued the cause, | Dec. 65; Farmers' Mut. Ins. Co. v. 73 Pa. 342; Light v. Countrymen's Mut. F. and, with Mr. Joseph R. Webster, filed a Ins. Co. 169 Pa. 316, 32 Atl. 439; Swain v. brief for respondent: Where an insurance agent with authority Macon F. Ins. Co. 102 Ga. 96, 29 S. E. 147; to accept risks, receive premiums, and issue Hobkirk v. Phonix Ins. Co. 102 Wis. 13, 78 policies, exercises such authority with N. W. 160; American Ins. Co. v. Luttrell, knowledge of the existence of concurrent S9 Ill. 314; North British & M. Ins. Co. v. insurance on the insured property, the com-Steiger, 26 111. App. 228; King County F. pany is estopped after loss to insist that the policy is void because consent to such concurrent insurance was not given in writing. Knowledge of the agent in such case will be imputed to the company, and that which the insurer knew when engaging in the venture it will be presumed to have assented to. *Mr. Justice Shiras delivered the opinion [310] of the court: In order that the questions discussed in this case and the grounds of our judgment therein may sufficiently appear, it seems proper to set out, with substantial fulness, the pleadings of the parties and the special verdict of the jury. Ins. Co. v. Swigert, 11 Ill. App. 590; Insurance Co. of N. A. v. McDowell, 50 Ill. 120, 99 Am. Dec. 497; First Nat. Bank v. Amer. ican Cent. Ins. Co. 58 Minn. 492, 60 N. W. 345; Brandup v. St. Paul F. & M. Ins. Co. 27 Minn. 393, 7 N. W. 735; Insurance Co. of N. A. v. Coombs, 19 Ind. App. 331, 49 N. E. 471; Collins v. Farmville Ins. & Bkg. Union Mut. L. Ins. Co. v. Wilkinson, 13 Co. 79 N. C. 279, 28 Am. Rep. 322; Grubbs v. North Carolina Home Ins. Co. 108 N. C. Wall. 232, 20 L. ed. 617; Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 234, 24 L. ed. 472, 13 S. E. 236; Gandy v. Orient Ins. Co. 689; Eames v. Home Ins. Co. 94 U. S. 621, 52 S. C. 224, 29 S. E. 655; Schroeder v. 24 L. ed. 298; Hartford L. Annuity Ins. Co. Springfield F. & M. Ins. Co. 51 S. C. 180, 28 v. Unsell, 144 U. S. 439, 36 L. ed. 496, 12 S. E. 371; McBryde v. South Carolina Mut. Sup. Ct. Rep. 671; Putnam v. Common-Ins. Co. 55 S. C. 589, 33 S. E. 729; Phenix wealth Ins. Co. 18 Blatchf. 368, 4 Fed. 754; Ins. Co. v. Covey, 41 Neb. 724, 60 N. W. Glover v. National F. Ins. Co. 30 C. C. A. 12; German-American Ins. Co. v. Covey, 41 95, 42 U. S. App. 728, 85 Fed. 125; Fire Neb. 728, 60 N. W. 13; Home F. Ins. Co. v. man's Fund Ins. Co. v. Norwood, 16 C. C. A. Hammang, 44 Neb. 566, 62 N. W. 883; 2 136, 32 U. S. App. 490, 69 Fed. 71; North- Wood, Ins. 2d ed. pp. 908-910; 2 May, Ins. ern Assur. Co. v. Grand View Bldg. Asso. 414th ed. § 497, p. 1182; May, Ins. § 499; 1 C. C. A. 207, 101 Fed. 77; London & L. F. Joyce, Ins. § 515; Ostrander, Fire Ins. § Ins. Co. v. Fischer, 34 C. C. A. 503, 92 Fed. | 243, pp. 554, 555. 500; McElroy v. British America Assur. Co. 36 C. C. A. 615, 94 Fed. 990; Palatine Ins. Co. v. McElroy, 40 C. C. A. 441, 100 Fed. 391; Pitney v. Glen's Falls Ins. Co. 65 N. Y. 6; Pechner v. Phonix Ins. Co. 65 N. Y. 195; Short v. Home Ins. Co. 90 N. Y. 16; Robbins v. Springfield F. & M. Ins. Co. 149 N. Y. 484, 44 N. E. 159; Wood American F. Ins. Co. 149 N. Y. 385, 44 N. E. 80; Niagara F. Ins. Co. v. Johnson, 4 The plaintiff's petition, having alleged the Kan. App. 16, 45 Pac. 789; Home Ins. Co. making of the policy of insurance and the v. Wood, 47 Kan. 521, 28 Pac. 167; State destruction of the property insured, then Ins. Co. v. Gray, 44 Kan. 731, 25 Pac. 197; proceeded to allege in its fourth paragraph, Kan. 161, 21 Pac. 165; Hamilton v. Home apparently by way of meeting an expected Ins. Co. 94 Mo. 353, 7 S. W. 261; McCollum defense, that "plaintiff, shortly prior to issuance of aforesaid policy by the defendant, v. Hartford F. Ins. Co. 67 Mo. App. 76; had procured a policy of insurance from the Farnum v. Phoenix Ins. Co. 83 Cal. 249, 23 Firemen's Fund Insurance Company, incorPac. 869; Miller v. Hartford F. Ins. Co. 70 Iowa, 704, 29 N. W. 411; Bennett v. Coun-porated under the laws of California, insuroil Bluffs Ins. Co. 70 Iowa, 600, 31 N. W. ing it against loss by fire of the same prop948; Myers v. Council Bluffs Ins. Co. 72 Iowa, 176, 33 N. W. 453; Siltz v. Hawkeye Ins. Co. 71 Iowa, 710, 29 N. W. 605; Jordan v. State Ins. Co. 64 Iowa, 216, 19 N. W. 917; Boetcher v. Hawkeye Ins. Co. 47 Iowa, 253; Miller v. Mutual Ben. L. Ins. Co. 31 Iowa, 216, 7 Am. Rep. 122; Key v. Des Moines Ins. Co. 77 Iowa, 174, 41 N. W. 614; Steele v. German Ins. Co. 93 Mich. 81, 18 L. R. A. 85, 53 N. W. 514; German Ins. Co. v. Everett, 18 Tex. Civ. App. 514, 46 S. W. 95; Liverpool & L. & G. Ins. Co. v. Ende, 65 Tex. 118; Morrison v. Insurance Co. of N. A. 69 Tex. 353, 6 N. W. 605; Planters' Mut. Ins. Co. v. Lyons, 38 Tex. 253; Kalmutz v. Northern Mut. Ins. Co. 186 Pa. 576, 40 Atl. 816; Wood, Ins. 2d ed. pp. 1162, 1163; Elliott v. Lycoming County Mut. Ins. Co. 66 Pa. 26; Wilson v. Mutual F. Ins. Co. 174 Pa. 557, 34 Atl. 122; Eureka Ins. Co. v. Robinson, 56 Pa. 256, 94 Am. National Mut. F. Ins. Co. v. Barnes, 41 erty in the sum of $1,500 for a term of two 215 waive the condition of said policy that 'it | above set forth and without the consent of shall be void if the insured now has or shall the defendant indorsed upon said policy in hereafter make or procure any other contract writing, and without the knowledge of the of insurance' on the property covered thereby. defendant, the plaintiff obtained a policy of And by the aforesaid several acts and by pro- insurance, upon the property covered by the curing, receiving, accepting, and retaining policy issued by this defendant, in the sum of said insurance premium with knowledge of $1,500 in the Firemen's Fund Insurance of said subsisting concurrent insurance the Company. defendant has waived the said condition and is estopped to claim benefit thereof, and is bound by its said policy notwithstanding said condition; that plaintiff had no insurance on said property except as before stated." Having stated that plaintiff had rendered and delivered a statement of loss, in compliance with the terms of the policy, the petition further alleged that "on the 26th day of July, 1898, the plaintiff demanded of defendant the payment of said insurance; and defendant, disregarding its undertaking in that behalf, denies liability on the sole ground that said policy has been void from the date of its issue by reason of the said provision in regard to other insurance, the same provision which as aforesaid it had waived at the time of issuing its said policy." The answer of defendant admitted the making of the policy, the destruction of the insured property by fire, and proof of loss, but denied specifically the allegations of the fourth paragraph of said petition, as follows: "Further answering, this defendant alleges that the policy of insurance which it issued to the plaintiff on December 31, 1896, contained the following provision: "Defendant says that the property upon which it issued its policy in the sum of $2,500 was represented by the plaintiff to the defendant to be of the value of $3,500. The defendant alleges that by reason of the additional insurance upon said property, not consented to in writing indorsed upon the policy of defendant, and not in fact known to the defendant, the policy written by the defendaut upon the plaintiff's property was, at the date of the fire which damaged or destroyed the plaintiff's property, wholly void, and was and has been void from the date of such additional assurance. Defendant further says that on the 5th day of August, 1898, the defendant tendered to the plaintiff in current fund the sum of $33.75, the amount of the premium paid by the plaintiff upon the policy in question, and now brings into court and tenders to the plaintiff the said sum of $33.75, with interest at the rate of 7 per cent from December 31, 1896." The plaintiff company replied to the answer, denying that it *procured a policy of[313]| insurance in the Firemen's Fund Insurance Company upon the property insured by defendant in violation of the terms of the policy issued by defendant and without the ""This entire policy, unless otherwise pro-knowledge of defendant, and made the folvided by agreement indorsed hereon or add-lowing allegations: ed hereto, shall be void if the insured now "The policy referred to in said answer of has or shall hereafter make or procure any $1,500 in the Firemen's Fund Insurance Comother contract of insurance, whether valid or pany was, on the contrary, subsisting at and not, on property covered in whole or in part prior to the issuance by defendant to the by this policy. The defendant further says plaintiff of the policy sued on herein, and that its policy in question was issued to the was in fact issued December 12, 1895, for the plaintiff with the express statement therein term of three years, and the existence of such made that it was issued in consideration of policy was personally well known to A. D. the 'stipulations' therein named and a cer- Borgelt, defendant's recording agent, who tain amount of premium paid therefor. And wrote said policy, and accepted said risk, [312]said policy, besides the provisions above and who then had full charge of defendant's quoted, contains the following stipulation agency at Lincoln, Nebraska, with authority and condition: "This policy is made and ac- to accept fire insurance risks for and on cepted subject to the foregoing stipulations defendant's behalf, to countersign and issue and conditions, together with such other pro- its policies of insurance, and to collect and visions, agreements, or conditions as may be receive the premiums therefor. And at and indorsed hereon or added hereto, and no of- prior to his acceptance of said risk and inficer, agent, or other representative of thissurance of the policy sued on, the plaintiff's company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed herein or added thereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.' The defendant says that notwithstanding the stipulations, provisions, and agreements president, H. J. Walsh, reported orally to said A. D. Borgelt the fact of such subsisting insurance of $1,500, and said Borgelt, as such agent, with full knowledge of said fact, accepted the risk, and wrote, executed, and delivered said policy to defendant, with the intent on the part of both plaintiff and defendant that the same should be concurrent with the said subsisting insurance and not avoided or affected thereby, and with purpose and intent of defendant knowingly to waive and forego all benefit of the provisions of said policy set forth in defendant's answer; and in faith thereof and with the sole purpose to "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, and conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or conterms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or remission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. procure such insurance to be concurrent with the subsisting insurance, and not otherwise, the plaintiff paid, and the defendant procured and received, the premium therefor. By all the aforesaid several acts the defendant has waived all benefit of the particular conditions of its policy prohibiting concurrent insurance, prior and subsequent, except by in-dition of this policy except such as by the dorsement on the policy; and the defendant is estopped and concluded thereby from claiming any benefit or advantage by reason of said conditions of the policy.' In support of its side of the issues thus [314]presented, the plaintiff *company called as witnesses H. J. Walsh, its president, and Bert Richards, the agent of the Firemen's Fund Insurance Company, who testified that Borgelt was informed by them and had knowledge of the subsisting insurance at and before the delivery of the policy in suit. The plaintiff likewise put in evidence the original policy sued on, and a letter from G. H. Lermit, manager of the defendant company at Chicago, Illinois, and who had signed the policy in suit as such agent, in the terms following: Chicago, Aug. 2, 1898. To Grand View Building Association, H. J. Walsh, President, Lincoln, Nebraska. Dear Sirs: We have your favor of the 26th ult., inclosing to us what purports to be proof of loss, making claim under our policy No. 310,024, of Lincoln, Nebraska, agency, and issued to you for $2,500 on household furniture, etc., while contained in the threestory brick and stone building on lot F in Grand View Residence Park addition, on account of a fire which occurred on the 1st day of June, 1898, and beg to say in reply that your sworn statement therein advises us that you had other insurance on this same property to the amount of $1,500. This additional insurance held by you was without the knowledge or consent of this company, and was not permitted by agreement as provided for in lines Nos. 11, 12, and 13 of the printed conditions of our policy, to which we beg to refer you. We therefore regret to have to advise you, and do hereby say to you, that the Northern Assurance Company specifically and absolutely denies any and all liability under said policy No. 310,024 held by you, holding that said policy has been void from the date of its issuance by reason of the said provision in regard to other insurance above referred to. Our agents at Lincoln have been instructed to return to you the full premium paid them by you, namely, $33.75, at once. The plaintiff further offered the original policy in evidence, containing, among other things, the following provisions: "This entire policy, unless otherwise provided by agreement indorsed hereon or added [315]hereto, shall be void if the insured *now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." The defendant, to maintain the issues on its part, called as a witness A. D. Borgelt, who testified that he was a member of the firm of Borgelt & Beasley, insurance agents at Lincoln, Nebraska, which firm wrote the policy in the Northern Assurance Company on the Grand View Building Association; that at the time he wrote the policy he had no notice or knowledge that there was other insurance upon the property covered by the policy in suit, and the first time he knew of any other insurance was after the fire; that while Walsh might have mentioned that there was an existing policy, he, the witness, had no recollection of having known anything about the other insurance until after the fire. He further testified that on August 4, 1898, the premium paid for the policy in suit was tendered to the plaintiff company, which declined to take it. The defendant thereupon moved the court to instruct the jury to return a verdict for the defendant, which motion was overruled, and defendant excepted. The jury, under the instructions of the court, found that the defendant company issued to the plaintiff company the policy described in the plaintiff's petition; that the property covered by said policy of insurance was burned on or about June 1, 1898; *that the plaintiff, on or about July 26, 1898, furnished the defendant with proofs of the loss of said property by fire; that the policy contained the provision hereinbefore mentioned, providing that the policy should be void if the insured had or should thereafter make or procure any other contract of insurance on the property covered by the policy in suit, and that the policy was made subject to such condition, and that no officer, agent, or other representative of the company should have power to waive any provision or condition of the policy except such as by the terms of the policy had been indorsed thereon or added thereto, and that no officer, agent, or representative of the company should have power or be deemed or held to have waived such provision or condition unless such waiver was written upon or attached to the policy, and that no privilege or provision affecting the insurance under the policy should exist (or be claimed by the insured, unless so written or attached; that there was at the time [316] of the issuance of the policy in suit other insurance upon the insured property in the sum of $1,500, in the Firemen's Fund Insurance Company; that Borgelt was recording agent of the Northern Assurance Company, at Lincoln, Nebraska, with authority from the defendant company to countersign and issue its policies and accept fire insurance risks in its behalf, and to collect and receive premiums therefor, and that he had issued the policy sued on as such agent; that Borgelt knew, when the policy in the defendant company was issued and delivered to the plaintiff company, that there was then $1,500 subsisting insurance in the Firemen's Fund Insurance Company upon the insured property, issued prior to the date of the policy of the defendant company, and that such knowledge was communicated to said Borgelt by and on behalf of the assured; that the actual cash value of the property covered by the policy in suit and destroyed by fire June 1, 1898, was $4,140; that no consent to concurrent insurance of $1,500 was indorsed on the policy in suit; and that, on August 4, 1898, the amount of the premium paid for the policy was tendered to and refused by the plaintiff. Thereafter motions were respectively made by the plaintiff and defendant for judgment upon the findings and special verdict [317]of the jury, and on January 14, 1899, the motion of the defendant was overruled, and exception was taken by the defendant, and the motion of the plaintiff was sustained, and judgment was entered in favor of the plaintiff and exception was taken by the defendant. A writ of error was prayed for by the defendant and allowed, and the cause was taken to the United States circuit court of appeals for the eighth circuit, where the judgment of the circuit court was affirmed, and the cause was then brought to this court by a writ of certiorari. Over insurance by concurrent policies on the same property tends to cause carelessness and fraud, and hence a clause in the policies rendering thein void in case other insurance had been or should be made upon the property and not consented to in writing by the company, is customary and reasonable. In the present case, such a provision was expressly and in unambiguous terms contained in the policy sued on, and it was shown in the proofs of loss furnished by the insured, and it was found by the jury, that there was a policy in another company outstanding when the present one was issued. It also was made to appear that no consent to such other insurance was ever indorsed on the policy or added thereto. Accordingly it is a necessary conclusion that by reason of the breach of the condition the policy became void and of no effect, and no recovery could be had thereon by the insured unless the company waived the condition. The question before us is therefore reduced to one of waiver. The policy itself provides the method whereby such a waiver should be made: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions or conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any provision or permis-[318) sion affecting the insurance under this policy exist or be claimed by the insured unless so written or attached." Before proceeding to a direct consideration of the question before us, it may be well to inquire into the principles established by the authorities as applicable to such cases. It is a fundamental rule, in courts both of law and equity, that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. This rule is thus expressed in Greenleaf on Evidence, 12th ed. § 275. "When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected." The rule is thus expressed by Starkie, Ev. 9th Am. ed. 587: "It is likewise a general and most inflexible rule, that wherever written instruments are appointed, either by the requirement of law, or by the compact of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used, either as a substitute for such instruments or to contradict or alter them. This is a matter both of principle and policy; of principle, because such instruments are in their nature and origin entitled to a much higher degree of credit than parol evidence; of policy, because it would be attended with great mischief if those instruments upon which men's rights depended were liable to be impeached by loose collateral evidence." This rule has always been followed and applied by the English courts in the case of policies of insurance in writing. Thus in Weston v. Emes, 1 Taunt. 115, it was held that parol evidence of what passed at the time of effecting a policy is not *ad-[31 missible to restrain the effect of the policy, Mansfield, Ch. J., observing that such "evidence could not be admitted, without abandoning in the case of policies, the rule of evidence which prevails in all other cases; and |