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be shown by parol evidence; dissenting opinion in Atlas Reduction Co. v. New Zealand Ins. Co., 138 Fed. 510, 513, 9 L. R. A. (N. S.) 433, 71 C. C. A. 21, majority holding provision that policy shall be void when property insured is encumbered not waived by showing insurer's agent had knowledge; dissenting opinion in Medley v. German etc. Ins. Co., 55 W. Va. 372, 47 S. E. 114, majority holding provision that policy shall be forfeited by notice of sale under foreclosure cannot be waived orally by agent.

Denied in People's Fire Ins. Co. v. Goyne, 79 Ark. 328, 329, 9 Ann. Cas. 373, 96 S. W. 370, 371, that agent procuring insurance waived falsity of answers in application may be proved by parol evidence, though policy stipulates for waiver by indorsement only.

Admissibility of parol evidence to explain or modify fire insurance contract. Note, Ann. Cas. 1914C, 61.

Parol-evidence rule as to varying or contradicting written contracts, as affected by doctrine of waiver or estoppel of insurer. Note, 16 L. R. A. (N. S.) 1167, 1173, 1175, 1187, 1194.

Public have an interest in maintaining validity of clauses respecting notice of other insurance.

Approved in Maupin v. Scottish Union & Nat. Ins. Co., 53 W. Va. 567, 45 S. E. 1007, holding inadmissible parol evidence of waiver by soliciting agent of "iron-safe clause" in insurance policy.

Provision rendering policy void for taking of other insurance without consent of company is usual and reasonable.

Approved in McKernan v. North River Ins. Co., 206 Fed. 988, giving of chattel mortgage on property insured under policy containing provision avoiding policy if property was so encumbered, avoided policy, and payment of debt did not reinstate policy; Bakhaus v. Germania Fire Ins. Co., 176 Fed. 880, 100 C. C. A. 349, breach of condition against other insurance avoided fire insurance policy; Springfield Fire etc. Ins. Co. v. Chandlee, 41 App. D. C. 212, encumbrance of automobile in violation of terms of policy avoided policy; Baglin v. Southern Surety Co., 41 App. D. C. 537, surety company is released from liability upon bond for return of loaned securities, where parties to loan learning company would not execute bond for return of money changed subject matter of loan to securities and entered into supplementary agreement, whereby borrower was to return face value of bonds; Interstate Fire Ins. Co. v. Nelson, 105 Miss. 447, 62 South. 426, concurrent insurance in excess of amount stipulated avoids policy; St. Paul Fire & Marine Co. v. Bragg, 41 Okl. 148, 137 Pac. 716, in action on fire policy declaring it void at election of company if other insurance is taken out, answer alleging other insurance, but failing to allege compliance with terms of policy in case of election is insufficient to plead election to declare policy void; Hronish v. Home Ins. Co., 33 S. D. 436, 146 N. W. 590, agent's knowledge of

919 ASSURANCE CO. v. GRAND VIEW B. ASSN. 183 U. S. 308–365

additional insurance upon property was not waiver of condition against concurrent insurance without indorsement of waiver on policy.

Insurance company may make it condition in policy that agent shall not be deemed to have authority to change terms.

Approved in Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 624, 60 L. Ed. 1211, 36 Sup. Ct. 676, denying recovery on life policies where insured permitted subordinate agent to present application containing material misrepresentations; Aetna Life Ins. Co. v. Moore, 231 U. S. 559, 58 L. Ed. 367, 34 Sup. Ct. 186, agreement of applicant for insurance that no person but executive officer can vary its terms is binding and insurer is not estopped by knowledge of medical examiner and answer written by agent to question in application to avoid policy for false representation; Order of United Commercial Travelers v. Young, 212 Fed. 134, 128 C. C. A. 648, secretary treasurer of local counsel of fraternal insurance association has no authority to waive constitution and by-laws and practice of accepting payment of dues and assessments after maturity is not binding on order; Wyss-Thalman v. Maryland Casualty Co., 193 Fed. 58, 113 C. C. A. 383, provision in accident policy that no change or waiver of its provisions should be valid unless indorsement was added signed by president or secretary of company, was valid; Belden v. Union Central Life Ins. Co., 167 Cal. 745, 141 Pac. 372, where insurance contract terms could not be modified nor forfeiture waived except by agreement in writing signed by president, vice-president or secretary, whether general agent had authority to waive forfeiture was for jury, and instruction that general agent had authority to waive forfeiture was erroneous; Iverson v. Metropolitan Life Ins. Co., 151 Cal. 753, 13 L. R. A. (N. S.) 866, 91 Pac. 611, insurer by issuing policy did not waive right to rely on falsity of statement that applicant had never had paralysis, to defeat liability on policy; Shoncair v. North British etc. Ins. Co., 16 N. M. 573, 576, 120 Pac. 330, 331, existence of chattel mortgage invalidates policy containing stipulation avoiding it, if interest in property is other than sole and unconditional ownership.

Distinguished in Mutual Life Ins. Co. v. Hilton-Green, 211 Fed. 38, 127 C. C. A. 467, false representation that applicant had not been rejected by other company, known to managing and soliciting agents and medical examiner, does not avoid policy; Thompson v. Traders' Ins. Co., 169 Mo. 24, 68 S. W. 891, holding notice to general agent empowered to issue additional insurance is notice to company grounding waiver of condition against other insurance.

Effect of limitations on agent's authority to waive conditions in insurance policy. Note, 2 Ann. Cas. 115.

Limited grant of authority in fire insurance policy to assent by indorsement on policy to other insurance is measure of agent's power.

Approved in Mulrooney v. Royal Ins. Co., 163 Fed. 835, 836, 90 C. C. A. 317, written consent of insurance company to transfer by assignment of

insured property, indorsed on policy by agent is not consent to mortgage, although agent gave oral consent to mortgage; Despain v. Pacific Mut. Life Ins. Co., 81 Kan. 728, 106 Pac. 1029, where agent knowing facts writes false statements in application and procures signature of applicant, company waives forfeiture for misrepresentations, although application contains restriction upon agent's authority to make such waiver; Black v. Atlanta Home Ins. Co., 148 N. C. 175, 61 S. E. 673, under act of 1905, prescribing standard policy, parol evidence is inadmissible to show waiver of condition against additional insurance, not indorsed on policy as required; J. P. Lamb & Co. v. Merchants' Nat. Mut. Fire Ins. Co., 18 N. D. 267, 119 N. W. 1053, holding secretary of mutual fire insurance company has no power to waive provision of by-laws suspending policy if premium remains unpaid for thirty days, and holder cannot recover for loss after expiration of such period and cancellation of policy and before payment of premium; St. Paul Fire etc. Ins. Co. v. Peck, 37 Okl. 88, 90, 130 Pac. 806, 807, encumbrance of insured property, without consent of company, by chattel mortgage after issuance of policy avoided policy issued prior to statehood; Conley v. Northwestern Fire etc. Ins. Co., 34 Okl. 751, 127 Pac. 425, holding in action on fire policy issued prior to statehood by company having knowledge of Indian land titles, that condition with reference to sole and unconditional ownership was waived; Des Moines Ins. Co. v. Moon, 33 Okl. 440, 441, 443, 126 Pac. 755, 756, provision of policy of fire insurance executed in Indian Territory making policy void if interest is other than sole and unconstitutional ownership, is not waived by fact that agent countersigning policy knew insured did not have fee simple; Home Ins. Co. v. Ballard, 32 Okl. 726, 727, 124 Pac. 317, 318, holding in action on insurance policy issued on July 3, 1907, prior to statehood, agent has no authority to waive provision for immediate notice, and policy is void; Sullivan v. Mercantile Town Mut. Ins. Co., 20 Okl. 464, 465, 466, 129 Am. St. Rep. 761, 94 Pac. 678, 679, insurance company does not waive forfeiture of policy for breach of condition against encumbrances by fact that agent had notice of encumbrance at time of issuance of policy.

Distinguished in Insurance Co. of North America v. Little, 34 Okl. 452, 125 Pac. 1099, in contract of insurance executed after statehood, acceptance of premium and delivery of policy by agent having knowledge of chattel mortgage makes policy binding, notwithstanding provisions against encumbrances and waiver other than by indorsement; Home Ins. Co. v. Ballard, 32 Okl. 728, 124 Pac. 318, allowing recovery on insurance policy, issued on May 21, 1907, where record discloses substantial compliance with "iron safe" and "inventory clauses."

Denied in Western Nat. Ins. Co. v. Marsh, 34 Okl. 416, 417, 42 L. R. A. (N. S.) 991, 125 Pac. 1095, acceptance of premium and delivery of policy by agent having full knowledge of other insurance makes policy, issued after statehood, binding notwithstanding provisions against other insurance and waiver except by indorsement.

921 ASSURANCE CO. v. GRAND VIEW B. ASSN. 183 U. S. 308–365

Insurance company may waive forfeiture for breach of conditions. Approved in Macintosh v. Agriculture Fire Ins. Co., 150 Cal. 449, 119 Am. St. Rep. 234, 89 Pac. 106, company waived forfeiture of policy for increased risk by permission of general agent indorsed on policy to operate smelter on premises; Western Reciprocal Underwriters' Exchange v. Coon, 38 Okl. 465, 134 Pac. 27, holding adjuster of insurance company waived forfeiture of fire policy for failure to make proof of loss within sixty days; St. Louis etc. R. Co. v. Ladd, 33 Okl. 168, 124 Pac. 464, whether carrier waived stipulation limiting liability and fixing time and manner of giving notice and presenting claims is for jury.

Waiver of stipulations that conditions and forfeitures in insurance policies shall not be waived or shall be waived in writing only. Note, 107 Am. St. Rep. 124, 130.

Where waiver is relied upon, insured must show that company, with knowledge of facts, dispensed with condition.

Approved in Gish v. Insurance Co. of North America, 16 Okl. 75, 87 Pac. 874, following rule; Citizens' Trust etc. Co. v. Globe etc. Fire Ins. Co., 229 Fed. 328, fidelity company issuing policy to insurance company on account of agency waived immediate notice of loss required by policy by accepting explanation for delayed notice and assisting in obtaining agreement between parties; Rife v. Lumber Underwriters, 204 Fed. 37, 38, 122 C. C. A. 346, whether breach of condition in fire policy covering lumber in piles, requiring clear space of one hundred feet between insured property and manufacturing establishment was waived by knowledge of existence of facts constituting breach through inspector's report made before issuance of policy was for jury; United Shoe Mach. Co. v. Abbott, 158 Fed. 764, 86 C. C. A. 118, acceptance of several months' rent of leased machines after due, less discount, was not waiver of right of lessor to collect agreed rentals for subsequent months; Hampton Stave Co. v. Gardner, 154 Fed. 808, 83 C. C. A. 521, holding there was no waiver of breach by vendor of covenant to furnish abstract of title in contract granting time option to purchase land; Clemments v. German Ins. Co., 153 Fed. 237, report by agent of outstanding policies of insured in other companies waives provision rendering policy void for other insurance in so far as those policies are concerned, but not as to policy for four thousand dollars not reported; Williams v. Neely, 134 Fed. 10, 69 L. R. A. 232, 67 C. C. A. 171, holding there is no waiver of defense where there is no estoppel; Pennsylvania Casualty Co. v. Bacon, 133 Fed. 909, 67 C. C. A. 497, provision for forfeiture or nonpayment not waived by agent's acceptance of note in payment without express authority; Supreme Council of Royal Arcanum v. Taylor, 121 Fed. 68, 69, 57 C. C. A. 406, holding deceased cannot assert that supreme council waived right to prompt payment of assessments because of unauthorized act of collector which council did not ratify; Modern Woodmen v. Tevis, 117 Fed. 375, 377, 378, 54 C. C. A. 293, holding under by-laws of order clerk of local camp of Woodmen cannot bind society by extension of time or waiver

of default in payment of assessment; Supreme Lodge Knights of Honor v. Jones, 35 Ind. App. 127, 69 N. E. 718, 720, where deceased owed dues at time of death, to cover which creditor subsequently sent draft accepted by proper officer, defendant not estopped to declare policy forfeited for nonpayment; Dalton v. Milwaukee etc. Ins. Co., 126 Iowa, 381, 102 N. W. 122, where there is agreement between insured and insurer's agent that there shall be concurrent insurance, policy will be amended when this proviso omitted through oversight of agent; Harris v. North American Ins. Co., 190 Mass. 368, 77 N. E. 494, building in process of construction not unoccupied within meaning of agent's instructions prohibiting insuring of unoccupied building; Rauch v. Millers' Mut. Fire Ins. Co., 131 Mich. 285, 91 N. W. 161, condition for forfeiture if insured takes out other insurance waived where insured writes before taking out other insurance and letter is unanswered; Parsons, Rich & Co. v. Lane, 97 Minn. 105, 107, 106 N. W. 488, 489, condition based on insured owning land on which insured building stands waived by accepting premium after learning that building on leased ground; Taylor-Baldwin Co. v. Northwestern Fire etc. Ins. Co., 18 N. D. 353, 20 Ann. Cas. 432, 122 N. W. 401, letter rejecting claim and returning proofs of loss does not estop insurer from setting up breach of conditions of policy by procuring additional insurance, removing property and installing gasoline plant; Ritchie Co. Bank v. Fireman's Ins. Co., 55 W. Va. 273, 47 S. E. 99, provision forfeiting insurance in change in ownership of insured property not waived by agent's acceptance of premium with knowledge; Maupin v. Scottish Union & Nat. Ins. Co., 53 W. Va. 562, 45 S. E. 1005, holding inadmissible parol evidence to show waiver of iron-safe clause by soliciting agent, where policy expressly prohibited waiver by agents.

Distinguished in Carrollton Furniture Mfg. Co. v. American Credit Indemnity Co., 124 Fed. 26, 30, 31, 59 C. C. A. 545, holding policy not avoided by false answer by insured as to sales and losses where such statement was induced by representation of agent as to its correctness; Aetna Life Ins. Co. v. Frierson, 114 Fed. 63, 64, 51 C. C. A. 424, holding retention of premium at home office for accident policy covering trip to Alaska constitutes waiver of condition against extrahazardous trips; Hartford Fire Ins. Co. v. Redding, 47 Fla. 248, 110 Am. St. Rep. 133, 67 L. R. A. 518, 37 South. 70, where insured carried other insurance at time of writing policy, which fact was known by agent and company, company is liable though waiver not indorsed on policy; German-American Ins. Co. v. Yeagley, 163 Ind. 666, 71 N. E. 903, condition in policy for forfeiture if property encumbered waived by company accepting premium with knowledge of chattel mortgage; Welch v. Fire Assn., 120 Wis. 468, 98 N. W. 231, one obtaining policy for another and collecting for it is such general agent as to charge company with his knowledge under Rev. Stats. 1898, § 1977; dissenting opinion in Maupin v. Scottish Union & Nat. Ins. Co., 53 W. Va. 571, 572, 573, 574, 576, 577, 579, 580, 581, 587, 588, 589, 590, 45 S. E. 1009, 1010, 1011, 1012, 1013, 1015, 1016, 1017, majority holding inadmissible parol

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