The jury found that the answer given to the ninth question was true-that Malinda Jane Wilkinson had not had any serious personal injury, and hence there was no breach of war ranty. The jury did not pass upon the materiality of the answer to said ninth question. They simply found that the answer given in the application was true.

If the jury had found that the assured had received a serious personal injury and, notwithstanding, had found a general verdict in favor of plaintiff, then the counsel might legitimately show error in the instruction: they would be entitled to say that they were prejudiced by such error; but when the jury effectually disposed of this part of the defense without going into the questions suggested in the instructions, it is difficult to see how that defense was prejudiced, even admitting that there was error in said instructions.

Wilkinson v. Ins. Co., 30 Ia., 119; Carleton v. Bington, 24 Iowa, 173.

Our second answer to this point of the counsel's argument is. that there is no error in the 5th instruction. It is true that when the jury found that the assured never had any serious personal injury" the inquiry as to the effect of such injury could not arise; but if the jury had believed from the evidence that the assured had had any "serious personal injury then the instruction was legitimate and pertinent, to direct the jury as to whether such a serious personal injury was within the fair and reasonable construction of the ninth question in the application. The counsel here misconceived the point of controversy. It is not whether such question and answer is a warranty, or as to the effect of a breach of warranty; but it is: what is the precise fact which the parties in tended to warrant as true? Was the question designed to include every personal injury which, though it might have been serious at the time, was only temporary and soon passed away and was perhaps forgotten.

Wilkinson v. Conn. Mut. Ins. Co., 30 Ia., 119; Ross v. Bradshaw, 1 Wm. Bl., 312; Wall v. Ins. Co., 14 Barb., 385; Carter v. Ins. Co., 17 Ia., 461.

Provisions for a forfeiture where the intent is doubtful, are to receive a strict construction against those for whose benefit they are intro duced.

Livingston v. Stickles, 7 Hill, 254; 1 Sumn., 434; Breasted v. Farmer's L. & 1. Co., 8 N. Y., 305; Hoffman v. Ins. Co., 32 N. Y., 405; Pow. Cont., 389.

It only remains to examine that part of the defense which relates to the mother of Malinda Jane Wilkinson. As the jury found that the mother did not die of consumption, there can be no controversy as to that part of the application. There remains the simple point as to the age at which the mother died. There ap

The latest decision on the subject in Missouri is Combs v. Ins. Co., 43 Mo., 149. In this case, a recovery was resisted on the ground of false representations and warranties; that the application stated the title to be an unincumbered fee simple title, when it was, in fact, an incumbered equitable title. In reply to this defense, the court permitted the plaintiff against the objections of defendant, to introduce evidence tending to show that one Rush solicited the insurance as agent of defendant; that plaintiff apprised him of the true state of the title: that he filled the application in his own language, assuring plaintiff that it was all right, and that plaintiff, believing it so, signed it without being aware that the words "fee simple" and "no incumbrance" were in it. There was a verdict for the plaintiff.

The Supreme Court said: in our view the doctrine of estoppel in pais is applicable to the case and ought to be applied.

2 Am. Lead. Cas.. 5th ed., 1871, p. 914. contains the latest and most complete list and review of the cases on this subject which we have been able to find. It is there stated: "The better opinion would accordingly seem to be, that the insurers cannot take advantage of the misstatement or omission of any fact which it was their duty to set forth and state correctly in view of all the circumstances, and that this will be true even when the defect occurs in the application or other document which, though signed by the insured, is prepared by themselves, or by anyone whom they have duly authorized. with a knowledge of or an opportunity to know, all the material circumstances.

The following cases are then cited: Rooley v. Ins. Co., 36 N. Y.. 550; Walsh v. Kelly, 40 N. Y., 557; Peck v. Ins. Co.. 22 Conn., 575; Bebee v. Ins. Co., 25 Conn., 51; Iron Works v. Ins. Co., 25 Conn., 465; Bk. v. Ins. Co., 31 Conn., 517; Perry Co. Ins. Co. v. Stewart, 19 Pa., 45; Ins. Co. v. Bruner, 23 Pa., 50; Ins. Co. v. Spencer, 53 Pa., 353; Franklin v. Ins. Co., 42 Mo., 457; Combs v. Ins. Co., 43 Mo., 148; Beal v. Ins. Co., 16 Wis., 241: Clark v. Ins. Co., 40 N. H., 333; Ins. Co. v. Crane, 16 Md., 269.

That Ball, in making out the application, was the agent of the Insurance Company, and

to have been false, is made to an inquiry as to the age of the mother at the time of her death, and the disease of which she died.

The application shows that it was answered that she died at forty, of a fever. Evidence was given by defendant, tending to prove that she died much younger, of consumption. In avoidance of this, plaintiff was permitted to prove that the agent of the Insurance Company, who took down the answers of the applicant and his wife to all the interrogatories, was told by both of them that they knew nothing about the cause of the mother's death, or her age at the time; that the wife was too young to know or remember anything about it, and the hus band had never known her. But that there was present, at the time the agent was taking the application, an old woman who said she had knowledge on that subject, and that the agent questioned her for himself, and from what she told him he filled in the answer which is now alleged to be untrue, without its truth being affirmed or assented to by plaintiff or the wife. The jury find all this in their special verdict, and also find that the mother died at the age of twenty-three years, and did not die of consumption. The husband and wife had all been slaves, and it is found that the applicant did not know when the application was signed, how the answer to the question had been filled in. And on this subject the court instructed the jury, that if the applicant did not know at what age her mother died, and did not state it, and declined to state it, and that her age was inserted by the agent upon statement made to him by others, in answer to inquiries he made of them, and upon the strength of his own judg. ment based upon data thus obtained, it was no defense to the action to show that the agent was mistaken, and that the mother died at the age of twenty three years.

did not exist some authority to correct the universality of its application. It is upon this principle that courts of equity proceed in giv. ing the relief just indicated; and though the courts, in a common law action, may be more circumscribed in the freedom with which they inquire into the origin of written agreements, such an inquiry is not always forbidden by the mere fact that the party's name has been signed to the writing offered in evidence against him. In the case before us a paper is offered in evidence against the plaintiff containing a representation concerning a matter material to the contract on which the suit is brought, and it is not denied that he signed the instrument, and that the representation is untrue. But the parol testimony makes it clear beyond a question, that this party did not intend to make that representation when he signed the paper, and did not know he was doing so, and, in fact had refused to make any statement on that subject. If the writing containing this representation had been prepared and signed by the plaintiff in his ap plication for a policy of insurance on the life of his wife, and if the representation complained of had been inserted by himself, or by some one who was his agent alone in the matter, and forwarded to the principal office of the defendant Corporation, and acted upon as true. by the officers of the Company, it is easy to see that justice would authorize them to hold him to the truth of the statement, and that as they had no part in the mistake which he made, or in the making of the instrument which did not truly represent what he intended, he should not, after the event, be permitted to show his own mistake or carelessness to the prejudice of the Corporation.

The great value of the rule of evidence here invoked cannot be easily overestimated. As a means of protecting those who are honest, accurate and prudent in making their contracts, against fraud and false swearing, against carelessness and inaccuracy, by furnishing evidence of what was intended by the parties, which can always be produced without fear of change or liability of misconstruction, the rule merits the eulogies it has received. But experience has shown that in reference to these very matters the rule is not perfect. The written instrument does not always represent the intention of both parties, and sometimes it fails to do so as to either; and where this has been the result of accident or mistake or fraud, the principle has been long recognized that under proper circumstances, and in an appropriate proceeding, the instrument may be set aside or reformed, as best suits the purposes of justice. A rule of evidence adopted by the courts as a protection against fraud and false swearing, would, as was said in regard to the analogous rule known as the Statute of Frauds, become the instrument of the very fraud it was intended to prevent, if there

contract of insurance, and that the insurer him. self wrote out all these representations, and was told by the plaintiff and his wife that they knew nothing at all of this particular subject of inquiry, and that they refused to make any statement about it, and yet knowing all this, wrote the representation to suit himself, it is equally clear that for the insurer to insist that the policy is void because it contains this statement, would be an act of bad faith and of the grossest injus tice and dishonesty. And the reason for this is that the representation was not the statement of the plaintiff, and that the defendant knew it was not when he made the contract; and that it was made by the defendant, who procured the plaintiff's signature thereto.

It is in precisely such cases as this that courts of law in modern times have introduced the doctrine of equitable estoppels, or, as it is sometimes called, estoppels in pais. The principle is, that where one party has by his representa tions or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that arivantage. And although the cases to which this principle is to be applied are not as well defined as could be wished, the general doctrine is well understood and is applied by courts of law as well as equity where the technical advantage

thus obtained is set up and relied on to defeat the ends of justice or establish a dishonest claim. It has been applied to the precise class of cases of the one before us in numerous well considered judgments by the courts of this country. Plumb v. Cattaraugus Ins. Co. 18 N. Y., 392; Rowley v. Empire Ins. Co., 36 N. Y., 550; Woodbury Sav. Bk. v. Charter Oak Ins. Co., 31 Conn., 526; Combs v. Hannibal Ins. Co., 43 Mo., 148. Indeed, the doctrine is so well understood and so often enforced that, if in the transaction we are now considering, Ball, the insurance agent, who made out the application, had been in fact the underwriter of the policy, no one would doubt its applicability to the present case. Yet the proposition admits of as little doubt that if Ball was the agent of the Insurance Company and not of the plaintiff, in what he did in filling up the application, the Company must be held to stand just as he would if he were the principal.

Although the very well considered brief of counsel for plaintiff in error takes no issue on this point, it is obvious that the soundness of the court's instructions must be tested main ly by the answer to be given to the question, "Whose agent was Ball in filling up the appli cation?"

This question has been decided differently by courts of the highest respectability in cases precisely analogous to the present. It is not to be denied that the application, logically considered, is the work of the assured, and if left to himself or to such assistance as he might select, the person so selected would be his agent, and he alone would be responsible. On the other hand, it is well known, so well that no court would be justified in shutting its eyes to it, that insurance companies organized under the laws of one State, and having in that State their principal business office, send these agents all over the land, with directions to solicit and procure ap. plications for policies, furnishing them with printed arguments in favor of the value and necessity of life insurance, and of the special advantages of the corporation which the agent represents. They pay these agents large commissions on the premiums thus obtained, and the policies are delivered at their hands to the assured. The agents are stimulated by letters and instructions to activity in procuring contracts, and the party who is in this manner induced to take out a policy, rarely sees or knows anything about the company or its officers by whom it is issued, but looks to and relies upon the agent who has persuaded him to effect insurance as the full and complete representative of the company, in all that is said or done in mak ing the contract. Has he not a right to so re gard him? It is quite true that the reports of judicial decisions are filled with the efforts of these companies, by their counsel, to establish the doctrine that they can do all this and yet limit their responsibility for the acts of these agents to the simple receipt of the premium and delivery of the policy, the argument being that, as to all other acts of the agent, he is the agent of the assured. This proposition is not without support in some of the earlier decisions on the subject; and, at a time when insurance com panies waited for parties to come to them to See 13 WALL.

seek assurance, or to forward applications on their own motion, the doctrine had a reasonable foundation to rest upon. But to apply such a doctrine, in its full force, to the system of selling policies through agents, which we have described, would be a snare and a delusion, leading, as it has done in numerous instances, to the grossest frauds, of which the insurance corporations receive the benefits, and the parties supposing themselves insured are the victims. The tendency of the modern decisions in this country is steadily in the opposite direction. The powers of the agent are, prima facie, co-extensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals. Bebee v. Ins. Co., 25 Conn., 51; Lycom ing Ins Co. v. Schollenberger, 44 Pa., 259; Beal v. Ins. Co., 16 Wis.. 241; Davenport v. Ins. Co., 17 Ia., 276. An insurance company, establishing a local agency, must be held responsible to the parties with whom they transact business, for the acts and declarations of the agent, within the scope of his employment, as if they proceeded from the principal. Sav. Bk. v. Ins. Co, 31 Conn., 517; Hortwitz v. Ins. Co., 40 Mo., 557; Ayres v. Ins. Co., 17 Iowa, 176; Howard Ins. Co. v. Bruner, 23 Pa., 50.

In the fifth edition of American Leading Cases, 917 after a full consideration of the authorities, it is said:

"By the interested or officious zeal of the agents employed by the insurance companies in the wish to outbid each other and procure customers, they not unfrequently mislead the insured, by a false or erroneous statement of what the application should contain; or, taking the preparation of it into their own hands, procure his signature by an assurance that it is properly drawn, and will meet the requirements of the policy. The better opinion seems to be that, when this course is pursued, the description of the risk should, though nominally proceeding from the insured, be regarded as the act of the insurers." Rowley v. Ins. Co., 36 N. Y., 550.

The modern decisions fully sustain this proposition, and they seem to us founded in reason and justice, and meet our entire approval. This principle does not admit oral testimony to vary or contradict that which is in writing, but it goes upon the idea that the writing offered in evidence was not the instrument of the party whose name is signed to it; that it was procured under such circumstances by the other side as estops that side from using it or relying on its contents; not that it may be contradicted by oral testimony, but that it may be shown by such testimony that it cannot be lawfully used against the party whose name is signed to it.

The judgment of the Circuit Court is affirmed.

Cited --21 Wal., 155; 94 U. S., 614, 630; 98 U. S., 89; 2 Dill., 159; 5 Sawy., 310; 2 Hughes, 537; 3 Hughes, 267: 40 N. J. L., 577; 11 Kan., 549; 64 N. Y.,650; 65 N. Y., 207 66 N. Y., 278; 73 N. Y., 495; 74 N. Y., 363; 78 N. Y 98 Ill., 330: 18 Am. Rep., 684 (25 Gratt., 268); 19 Am. 577; 30 Ohio St., 650; 33 Ohio St., 566; 33 Mich., 151; Rep., 491 (41 Conn., 168); 26 Am. Rep., 366 (28 Gratt., 389); 29 Am. Rep., 278, 279 (11 Vroom., 568); 30 Am. Rep., 526 (55 Miss., 479); 32 Am. Rep., 84 (65 Ind., 557); 39 Am. Rep., 659 (85 N. Y., 283); 41 Am Rep., 652, 654 (8 Lea., 513).

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