policy on account of failure to pay premium, unless the same was procured by fraud or through a mistake: Home etc. v. Gilman's Ex'r, 112 Ind. 7. Company is chargeable with mistakes of agents in filling up applications: Insurance Co. v. Williams, 39 Ohio St. 584; 48 Am. Rep. 474; Combs v. Hannibal etc. Co., 43 Mo. 148; 97 Am. Dec. 383. Company is bound by acts of its agent: Miller v. Phoenix etc., 27 Iowa, 203; 1 Am. Rep. 262. Policy is not invalidated because of misstatements therein of material facts, when filled out, issued, and renewed by its agent, after his personal inspection of the premises, unless there is fraud on the part of insured: Beal v. Park etc. Co., 16 Wis. 241; 82 Am. Dec. 719. Company must bear loss sustained by misconduct or disobedience of its agent acting within scope of his authority, rather than the insured, who has dealt fairly with him without notice: Com. mercial etc. Co. v. State, 113 Ind. 331.

INSURANCE - WAIVER OF CONDITIONS.-General agent may waive condi. tion inserted in policy issued by the company. Condition is waived by iзsnance of a policy by a general agent who knows of and assents to facts which constitute a breach of such condition. Waiver of breach of condition at the issuance of policy continues in favor of all renewals of such policy: Kruger v. Western etc. Co., 72 Cal. 91; 1 Am. St. Rep. 42, and note 45. Conditions are deemed waived as to misstatements of encumbrances, where company through its agent had knowledge at the time of the application of the fact that property was encumbered: Wilson v. Minnesota etc. Ass'n, 36 Minn. 112; 1 Am. St. Rep. 659, and note 660. To the same effect as to waiver of forfeiture of policy is Oshkosh etc. v. Germania etc. Co., 71 Wis. 454; 5 Am. St. Rep. 233, and note 236. Agent authorized to deliver policies and receive pay. ment may waive the payment of the premium in cash, notwithstanding a stipulation in policy to the contrary: Home etc. v. Gilman's Ex'r, 112 Ind. 7. A provision in a policy requiring assured in case of loss to give notice immediately to insurer, and produce certificate of preliminary proof from a notary or magistrate, is waived, if insurer, after learning of loss, makes no objection to want of notice and preliminary proof, but joins in proceedings for determining loss by arbitration; and this is true, although policy contains provision "that no condition thereof shall be altered, waived, etc., except by written indorsement of president," etc.: Carroll v. Girard etc. Co., 72 Cal. 297. It is settled that any condition of a contract of insurance may be waived by parol by the company: King v. Council Bluffs etc., 72 Iowa, 310. Plaintiff relying upon waiver by company of conditions in a policy must plead such waiver: Eiseman v. Hawkeye etc., 74 Iowa, 11. Clause in a policy denying insured's right to claim "a waiver by reason of any acts of any agent, unless such waiver is specially authorized in writing over signature of the president," etc., does not extend to stipulations of conditions to be performed after loss occurs, such as giving notice, furnishing proof, etc.: Traveler's etc. Co. v. Harney, 82 Va. 949.

Cox v. MCLAUGHLIN.

[76 CALIFORNIA, 60.]

AMENDMENT CHANGING CAUSE OF ACTION.It is not an abuse of discretion for the court to permit an amendment counting upon a quantum meruit, when the original complaint sought to recover according to the terms of a contract, and the facts stated in both complaints are substantially identical. FRAUDULENT CONTRACT. A contractor is not precluded from recovering upon his contract to do certain work in the construction of a railway, by the fact that he entered into an agreement with an engineer in charge of such work that he would give the latter a certain percentage of the profits of the contract if he (the engineer) would, without impairing the character of the road, or doing anything to the disadvantage of the railroad company, make such variations, when it should be possible to do so, as would make the work of the contractor less expensive. Especially is this true when the work was done openly, and was in all respects indorsed by the company for which it was done. INTEREST IS SOMETIMES ALLOWED IN AN ACTION TO RECOVER UPON UNLIQUIDATED DEMANDS, but its allowance is not proper when the action is to recover for services, the amount, character, and value of which can only be established by evidence in court, or by an accord between the parties, and are not susceptible of entertainment either by computation or by reference to market rates or other known standards.

S. M. Wilson, Wilson and Wilson, and L. D. McKisick, for the appellant.

D. M. Delmas and Henry E. Highton, for the respondent.

The COURT. This cause has been before this court several times on an appeal, and it is unnecessary to restate the facts. The history of the case may be found in the following volumes of our reports: 44 Cal. 18; 47 Id. 89; 54 Id. 605; 52 Id. 590; 63 Id. 196. It is sufficient to say that in 1864 Charles McLaughlin, now deceased, entered into a contract with the Western Pacific Railroad Company to grade the road-bed of its railroad from near the city of San José to Sacramento, a distance of 123 miles, and to construct all the superstructures, etc., necessary to place the road in complete running order, for the sum of five million four hundred thousand dollars; and that in January, 1865, said McLaughlin made a contract with the plaintiff, Cox, and his associates, by the terms of which the latter were to grade that part of the road which lieɛ between San José and Stockton, a distance of seventy-four and a quarter miles, to do the masonry work, and all things necessary for placing the cars, ties, and iron equipments on the track, for which McLaughlin was to pay them the sum of nine hundred thousand dollars. Cox afterwards became the as

signee of all his associates. Payments were to be made by McLaughlin to Cox as the work progressed, at amounts to be fixed by the estimates of the chief engineer of the said Western Pacific Railroad Company. Cox finished the first twenty miles, and part of the twenty-first mile, and received certain payments; but McLaughlin then failing to make further payments as provided in the contract, Cox was unable to proceed further with the work through want of funds, and abandoned it. Upon the former trials in the court below (except the first, when an attempt was made to enforce a mechanic's lien), Cox persistently proceeded upon the theory that the failure of McLaughlin to make the payment due operated as a technical "prevention" of a compliance with the contract by Cox, and that, therefore, the latter could recover contract rates on the original contract, profits which he would have made, etc. This position was held repeatedly by this court to be untenable; and after the case was last here he amended his complaint in the court below, so as to aver a claim for the value of the work actually done, as upon a quantum meruit. The court below tried the case without a jury, found the value of the work, over and above all moneys paid, to be $98,228.49, and gave plaintiff judgment for said sum, with interest at statutory rates from June, 1866, the time of the failure of McLaughlin to make said payment. From this judgment, and from an order denying a new trial, defendant appeals. Said Charles McLaughlin having in the mean time died, his executrix, Kate D. McLaughlin, was substituted as defendant. On the twenty-sixth day of April, 1888, Kate D. McLaughlin having died, J. C. Pennie, administrator of the estate of said Charles McLaughlin, was made party defendant.

The main points made by the appellant are these: 1. That the court abused its discretion in allowing said amendment to the complaint; 2. That plaintiff should not recover, because of a certain contract which he made with the chief engineer of the Western Pacific Railroad Company; 3. That there is no evidence to support the finding as to the work actually done or its value; 4. That no interest should have been allowed.

1. We think that there was no abuse of discretion in allowing the amendment setting up the quantum meruit. There were no new facts stated upon which a new cause of action was based. The facts as stated in all the complaints were substantially the same; and indeed, it is not clear that plain

tiff could not have proceeded upon the theory of a quantum meruit under his former compiaints. The same contracts, assignments, the work done and materials furnished, performance by the plaintiff, the breach by the defendant, the existence of all the conditions precedent to payment, have appeared in all of the complaints as the basis upon which the right to compensation in the plaintiff rested. When this case was last here, the court directed that the judgment should be reversed, and that judgment should be entered in the court below on the findings for defendant.

Afterwards, on rehearing, the judgment of this court was modified so as to reverse the judgment of the lower court, and send the case back for a new trial. There must have been some object in this modification; and in view of the facts. which have been repeatedly before the court, it was evidently regarded as possible to frame a complaint which would enable the plaintiff to recover the reasonable value of the services rendered and materials furnished. Of course, unless the facts stated constitute a new cause of action, the plaintiff's cause is not barred by the statute of limitations.

2. Under the contract between the railroad company and McLaughlin, the road was to be constructed according to a general route and profile; but it was to be varied according to the directions of the chief engineer. Cox was to receive the round sum of nine hundred thousand dollars for his entire work between the points named in his contract with McLaughlin, whether the variations ordered by the engineer should make that work heavier or lighter. Under these circumstances, Cox entered into a secret contract with the person who, for part of the time, was the engineer, that he would give to said engineer a certain percentage of the profits of his contract if he (the engineer) would, without impairing the character of the road, or doing anything to the disadvantage of the railroad company, make such variations, when it should be possible to do so, as would make the work of said Cox less expensive. It is claimed that this constituted a breach of the contract by Cox, Myers, & Co., a fraud upon the defendant, which, in any event, should defeat the claim of the plaintiff. The court found that both the railroad company and McLaughlin were willing that the engineer should make the work lighter without injury to said interest; that the variations were made, in some instances, at the request of said company and McLaughlin, and were all submitted to and

approved by them; and that the said contract between said engineer and Cox was not fraudulent. Under his agreement with Cox, the engineer, for a period of about three months, shared in the dividends of the contractors to the amount of three thousand five hundred dollars altogether. The original profile had to be succeeded by a definite location, which necessitated many changes; and these changes, as we have seen, were sanctioned by all parties. It was possible for the engineer, in making his definite location, by the exercise of extraordinary diligence and skill, to so perfect the work as to suit the convenience and the interest of all parties concerned. It appears that his work was done openly, and was in all respects indorsed. After the period mentioned, in which the engineer was receiving ten per cent under said agreement with Cox, a new contract was made between the contractors and McLaughlin.

Assuming that the contract between the engineer and Cox was one not proper to have been made, we cannot see how McLaughlin was in any way injured by it, or that it should prevent plaintiff from recovering in this action. McLaughlin received all the benefit of Cox's work, and was paid for it by the railroad company without objection. Furthermore, it is proper to say that this same claim of fraud has appeared in every answer and on every appeal without receiving any notice. If it has been passed upon in any respect, it must have been adversely to the defendant. We must assume that this court, on former appeals, has considered all the points, this one among the rest. The case has appeared here repeatedly upon substantially the same facts. If this point now made is good, it has always been good, and certainly would. have been noticed in the former decisions of this court herein.

Again, if we admit that this agreement with the engineer was fraudulent, and sufficient to prevent a recovery by Cox under his contract, the answer is, the present action is not upon such contract, but upon a quantum meruit for the value of the services and materials furnished.

3. After the lapse of a great many years, it was of course a difficult thing to show accurately the amount and value of the work actually done. The whole contract price for the entire distance of the road which was to have been built by Cox was nine hundred thousand dollars. McLaughlin himself was to be paid for the same work two million fifty-eight thousand dollars, absolutely, whether performed by him or for him by