When an agent is authorized to deliver a policy and collect the premium therefore, the cash payment may be waived even though the contrary is stipulated therein. New York L. Ins. Co. v. Greenlee (Ind.) 84 N. E. 1101. To the same effect, New York C. Ins. Co. v. National Protection Ins. Co. 20 Barb. 468; Boehen v. Williamsburgh City Ins. Co. 35 N. Y. 131, 90 Am. Dec. 787; McLean v. Tobin, 58 Misc. 528, 109 N. Y. Supp. 926; Elkins v. Susquehanna Mut. F. Ins. Co. 113 Pa. 386, 6 Atl. 224; Wytheville Ins. & Bkg. Co. v. Teiger, 90 Va. 277, 18 S. E. 195; Hotchkiss v. Germania F. Ins. Co. 5 Hun, 90; Peck v. Washington L. Ins. Co. 91 App. Div. 597, 87 N. Y. Supp. 210, Affirmed in 181 N. Y. 585, 74 N. E. 1122; Snyder v. Nederland L. Ins. Co. 202 Pa. 161, 51 Atl. 744; German Ins. Co. v. Everett (Tex. Civ. App.) 36 S. W. 125; Newark Mach. Co. v. Kenton Ins. Co. 50 Ohio St. 549, 22 L.R.A. 768, 35 N. E. 1060; Southern L.

Ins. Co. v. Booker, 9 Heisk. 606, 24 Am. Rep. 344; Miller v. Brooklyn L. Ins. Co. 12 Wall.

285, 20 L. ed. 398.

In Jackson v. German Ins. Co. 27 Mo. App. 62, it was held that a general agent through whom a policy was issued had power to waive or extend the time of payment of the premium, and to permit it to be paid in work.

The rule that a general agent of an insurer can waive the prepayment of premium, deliver the policy, and thereby make it a valid and subsisting contract of insurance, notwithstanding a provision that it shall not take effect unless the first premium is paid while the insured is in good health, was recognized in Berliner v. Travelers' Ins. Co. 121 Cal. 451, 53 Pac. 922.

In Standard Acci. Ins. Co. v. Friedenthal, 1 Colo. App. 5, 27 Pac. 88, the insured was held entitled to show that the general agent of the company had waived the prepayment of the premium on the policy, notwithstanding a condition that the policy should not take effect unless the premium were paid prior to the happening of any accident under which the claim was made.

A benefit certificate is not void on the ground that, at the time the application is made, the applicant is not a member of a particular association, where the agent soliciting the application agrees that the certificate shall become binding when the applicant is admitted into the association, and he is in fact admitted before any liability arises under the certificate. Delaney v. Modern Accident Club, 121 Iowa, 528, 63

L.R.A. 603, 97 N. W. 91.

The prepayment of premium is waived by a delivery of the policy, by the company's general agent, to the insured, at which time

and the subsequent delivery of the insured's check constitutes the consummation of the contract. Genung v. Metropolitan L. Ins. Co. 60 App. Div. 424, 69 N. Y. Supp. 1041. The fact that payment of the premium was made to one who was not an agent "duly appointed as such in writing," as required by its terms, is not a ground for forfeiture if payment was made to one to whom the policy was intrusted by the company for delivery and collection of the premium, and who was in fact its agent. To hold otherwise, said the court, would be a fraud on the policy holder. Arthurholt v. Susquehanna Mut. F. Ins. Co. 159 Pa. 1, 39 Am. St. Rep. 659, 28 Atl. 197.

2. Knowledge of facts avoiding policy. (a) Acquisition of knowledge; manner; grade of agency.

It is not proposed in this note, in discuss. ing the question of the effect of notice to the agent of facts relied upon by the insurance company to forfeit the policy, to go into the question of the source of such knowledge, er it came to him in the particular transacor the time when it was acquired, or whethtion or not, or to what extent the question is affected by the grade of the agent. It is sufficient for the purpose of the note that the information reached the company or its duly authorized agent at a time and in a manner which, in other cases, according to the laws of agency, would be held to bind the principal. But, as the question is closely related to the subject, and one which should not be overlooked in practice, a few cases will be taken by way of illustration.

Notice to an agent whose power is limited to the mere receiving and transmitting of a written application to the company, upon the basis of which it is to decide whether it will issue the policy, and upon what terms, where this is known to the insured, is not notice to the company. Wilson v. Conway F. Ins. Co. 4 R. I. 141.

And it was held in Reed v. Equitable F. & M. Ins. Co. 17 R. I. 785, 18 L.R.A. 498, 24 Atl. 834, that it is not enough to say that notice of prior insurances was communi. cated to the agent of the company without showing his grade; but the court declared the weight of authority was the other way.

In Baer v. American Credit Indemnity Co. 116 App. Div. 233, 101 N. Y. Supp. 672, Affirmed in 191 N. Y. 540, 84 N. E. 1108, it

was held that the effect of a breach of warof business done in certain hours, was not ranty in the application, as to the amount avoided by the fact that the amounts had been inserted in the application by the company's soliciting agent, since the knowledge of such agent was not chargeable to the company.

So, evidence that the company's solicit- | ing agent was told that the applicant had been previously rejected was held immaterial. O'Rourke v. John Hancock Mut. L. Ins. Co. 23 R. I. 457, 57 L.R.A. 496, 91 Am. St. Rep. 643, 50 Atl. 834.

Notice to the company's soliciting agent of facts which it was the duty of the medical examiner to obtain is not notice to the company. Butler v. Michigan Mut. L. Ins. Co. 184 N. Y. 337, 77 N. E. 398.

But in German Ins. Co. v. Everett, 18 Tex. Civ. App. 514, 46 S. W. 95, notice to the soliciting agent employed by the general agent, of the existence of an encumbrance on the property insured, was held to bind the company, and to prevent a forfeiture on that ground.

And in Boetcher v. Hawkeye Ins. Co. 47 Iowa, 253, evidence to prove that the assured correctly stated the fact that there was an encumbrance on the property covered by the policy, to the solicitor who took the application, was held admissible on the ground that notice to a soliciting agent was notice to the company, validating the poli

cy.

A company cannot forfeit a policy on the ground that the building insured was unoccupied, where its agent authorized to solicit and forward applications for insurance, to deliver policies, and to collect and transmit premiums, had knowledge at the time the policy was issued that the building was vacant; since the insurer was bound by the knowledge possessed by his agent touching

the character of the risk and the fact that

it was unoccupied. Jordan v. State Ins. Co.

64 Iowa, 216, 19 N. W. 917.

In Ayres v. Hartford F. Ins. Co. 17 Iowa, 176, 85 Am. Dec. 553, it was said that, if a local agent of an insurance company had authority only to receive and forward applications for risks, and did receive and forward such an application, evidence would not be receivable to show that the agent failed to take down statements made by the insured, or that he changed them; that, when the application was signed to be forwarded, the applicant made it his own. If, on the other hand, the local agent had the power to pass upon, and did pass upon, the risk, without submitting it to his principal, and failed correctly to take down facts stated by the applicant, in ignorance of which the application was signed; and there was nothing in the policy providing that the insurer should not be bound by the acts or knowledge of the agent, or by statements made to or by the agent,-the company would be estopped from objecting that it had been misled by misrepresentations of the assured.

If a local agent of the insurer, who took the application, was informed of the true condition of the ownership of the property, and failed correctly to take down the facts stated; and the policy was received by the assured in ignorance of any misstatement or

omission, the company is bound if the agent had power to pass upon, and did pass upon, the risk and issued the policy without forwarding the application or submitting the matter to the company; otherwise not. Ayres v. Home Ins. Co. 21 Iowa, 185.

An insurance company doing business through an agent with authority to solicit, make out, and forward applications for insurance, to deliver over policies when returned, and to collect and transmit premiums, is affected by the knowledge acquired by such agent when engaged in procuring an application, so as to be bound by a false and fraudulent statement in the application, made with the knowledge of the agent. Miller v. Mutual Ben. L. Ins. Co. 31 Iowa, 216, 7 Am. Rep. 122.

And in Mullin v. Vermont Mut. F. Ins. Co. 58 Vt. 113, 4 Atl. 817, the company was held estopped from claiming a forfeiture on account of false statements as to occupancy, written in the application by a special agent, who was told by the agent to procure the answers.

And in Phoenix Ins. Co. v. Ward, 7 Tex. Civ. App. 13, 26 S. W. 763, knowledge of the clerk of the general agent of the existence of a mortgage on the insured property, was held to estop the company from forfeiting it on that ground. To the same effect are W. B. Goode & Co. v. Georgia Home Ins. Co. 92 Va. 392, 30 L.R.A. 842, 53 Am. St. Rep. 817, 23 S. E. 744, and Bergeron v. Pamlico Ins. & Bkg. Co. 111 N. C. 45, 15 S. E. 883. Co. 135 N. Y. 298, 31 N. E. 1015, knowledge In Carpenter v. German American Ins. of a special agent or clerk of the general agent of the condition of the title of the property insured was held to prevent the company from avoiding the policy on the ground that the insured was not the sole and unconditional owner thereof.

In Teutonic Ins. Co. v. Howell, 21 Ky. L. Rep. 1245, 54 S. W. 852, knowledge of a subagent employed by the company's regular agent to take the application was held to estop the company from forfeiting the policy upon the ground that the title was not in the insured, and that it was overvalued.

And notice to an agent may be regarded as being notice at the time of the insurance, although given several months prior thereto, where given in the course of the negotiation. Weber v. Germania F. Ins. Co. 16 App. Div. 596, 44 N. Y. Supp. 976. The court said it could not be asserted as a matter of law that the lapse of time was sufficient to disconnect the notice from the insurance contract. That the agency was continuous from the inception of the negotiation until its close.

Where a policy is taken out for a year, and then renewed, and afterwards a new risk, given before the renewal of the origipolicy is substituted, notice of an increased nal policy, runs through all the subsequent insurances. People's Ins. Co. v. Spencer, 53 Pa. 353, 91 Am. Dec. 218.

In Broadhead v. Lycoming F. Ins. Co. 23 Hun, 397, it was held that the company

In Schultz v. Caledonia Ins. Co. 94 Wis. 42, 68 N. W. 414, the court said it was abundantly settled, and that the rule was, that, if the insurer, with full knowledge of the facts which would avoid the policy, nevertheless executed and delivered the policy, he waived the defect, and was estopped to assert it; and it was not necessary that there be an intention to waive.

In Iverson v. Metropolitan L. Ins. Co. 151 Cal. 746, 13 L.R.A. (N.S.) 866, 91 Pac. 609, the doctrine was recognized that, if an insurance company issued a policy with knowledge of the falsity of a material answer in an application, it must be deemed to have waived the warranty with respect to it; the question in the case being whether the knowledge of the soliciting agent was imputable to the company.

Delivery of a policy with knowledge of the existence of other insurance beyond the amount allowed therein is a waiver of such condition. Putnam v. Commonwealth Ins. Co. 18 Blatchf. 368, 4 Fed. 753; First Nat. Bank v. American Cent. Ins. Co. 58 Minn. 492, 60 N. W. 345; Anderson v. Manchester Fire Assur. Co. 59 Minn. 182, 28 L.R.A. 609, 50 Am. St. Rep. 400, 60 N. W. 1095, 63 N. W. 241; Hayward v. National Ins. Co. 52 Mo. 181, 14 Am. Rep. 400.

In Carrugi v. Atlantic F. Ins. Co. 40 Ga. 135, 2 Am. Rep. 567, it was held that the insurance of property with notice of other insurance was a waiver of the condition requiring indorsements of the same on the policy. This was put upon the ground that it would be a fraud upon the rights of the insured, after he had the consent of the agent, and had acted upon it, to insist upon the written contract.

And in City F. Ins. Co. v. Carrugi, 41 Ga. 660, the court held that the company would be bound by actual notice to its agent of prior insurance, although not indorsed on the policy, as required by its terms. The court said that if, in fact, the agent was notified, the failure to have it indorsed on the policy was not a conclusive bar to the insured's right. It was very well to have all things to be proved put in writing. Parol evidence was uncertain, but the law did permit certain things to be proved by parol, and laws of evidence were not in the control of individuals.

Proof that, before delivery of a policy to the insured, the company's agent had know edge of the amount of overinsurance, or was referred by the applicant, in answer to his own inquiries on the subject, to parties within easy reach, from whom he could have derived such knowledge, tends to show a waiver by the company of the requirement of the policy as to overinsurance. North

And in McFetridge v. Phenix Ins. Co. 84 Wis. 200, 54 N. W. 326, the doctrine of waiver of condition as to ownership, by knowledge of the agent through whom a policy was issued, is also recognized.

Knowledge of the company, through its agent, that the building insured was on ground not owned by the assured in fee simple, will prevent the avoidance of the policy on that ground, since this amounts to a waiver. American Cent. Ins. Co. v. Donlon, 16 Colo. App. 416, 66 Pac. 249.

A policy will not be forfeited on the ground that the insured was not the unconditional and sole owner of the property covered by the policy, where all the facts were known to the company when it issued the policy, since such conditions of the policy may be waived. Manchester Fire Assur. Co. v. Koerner, 13 Ind. App. 372, 55 Am. St. Rep. 231, 40 N. E. 1110, 41 N. E. 848.

A company cannot avoid a policy on the ground that the insured was not the sole and unconditional owner of the insured property when the agent who issued the policy knew what the insured's interest in the property was. Mechanics' & T. Ins. Co. v. Mutual Real Estate & Bldg. Asso. 98 Ga. 262, 25 S. E. 457. The court said it was well settled that, where an agent who was authorized to issue and deliver policies in behalf of an insurance company issued and delivered a policy with knowledge of the true state of the title, the knowledge of the agent was the knowledge of the company, and the delivery of the policy with such knowledge amounted to a waiver of conditions relating to the existing state of the title.

A company which, through its agent, knows that the insured has only a lease of the property covered by the policy, cannot, in the absence of fraud, forfeit it on the ground that the insured is not the owner in fee, since such knowledge and conduct operate as a waiver of the condition. Southern Ins. Co. v. Stewart (Miss.) 30 So. 755.

Where the insured made no representations whatever, and the agent admitted that he knew all about the title of the insured property, it was held that the company was bound by the agent's knowledge, the matter being within the scope of his agency, and that, in issuing the policy, it must be presumed to have waived conditions or representations relating to the title, in the absence of a clause providing that the company would not be bound by any statements made to the agents, not contained in the application. Ayres v. Phoenix Ins. Co. 66 Mo. App. 288.

The fact that the legal title of the property insured was held by the insured in trust for the benefit of himself and others cannot be made the ground of forfeiture,

Knowledge of the agent that there is a mortgage on the property insured, at the time of the issuance of the policy, waives a warranty that the title is unencumbered. Capital F. Ins. Co. v. Montgomery, 81 Ark. 508, 99 S. W. 687.

The doctrine that knowledge that the insured premises were vacant at the time of the issuance of the policy will constitute a waiver of the condition forfeiting the policy in case of vacancy, was also recognized in Chamberlain v. British-American Assur. Co. 80 Mo. App. 589.

A policy cannot be forfeited because of a breach of a condition that the property shall not become involved in litigation, where the agent through whom it was issued was fully informed at the time that the property was so involved, since this amounted to a waiver of the condition. American Cent. Ins. Co. v. Brown, 29 Ill. App. 602.

A condition as to sound health at the inception of the policy is waived by the knowledge of the general agent of the company that the applicant is sick, followed by the delivery of the policy. Ames v. Manhattan L. Ins. Co. 31 App. Div. 180, 52 N. Y. Supp. 759.

Where the agent of an insurance company, at the time he issues a policy, knows of the existence of the vacancy, and makes no objection on that account, and receives the premium from the assured, it will be a waiver of the condition in respect to such existing vacancy. Germania F. Ins. Co. v. Klewer, 129 Ill. 599, 22 N. E. 489, Affirming 27 Ill. App. 590, on this point; Devine v. Home Ins. Co. 32 Wis. 471.

The insured who, having fully informed the agent as to the condition of the occupancy of the property covered by the policy and the probability that the premises will become vacant during the life of the policy, is assured that it will not matter, and closes the contract, may recover, since the company, having accepted the premium and having assumed the risk, must be held to have waived the condition as to vacancy, or, if not, to be estopped from urging its breach as a defense. St. Paul F. & M. Ins. Co. v. Wells, 89 Ill. 82. In this case the policy, contrary to the agreement with the agent, contained a clause that, if the house became vacant without the consent of the company indorsed on the policy, it should become void; but this was unknown to the insured until after the fire, and this was the ground upon which the decision was based.

The provision against vacancy, which is for the benefit of the insurer, is waived if the company issues a policy with knowledge of an existing vacancy, notwithstanding the fact that the insured tells the agent that a tenant will move in the next day, which he fails to do, and the premises continue idle until the loss. German Ins. Co. v. Frederick, 57 Neb. 538, 77 N. W. 1106. The court said that the applicant's statements, as far as they concerned facts, were true, and that the

in such a case it shall be void, since, by receiving the premiums with this knowledge, the company will be held to have waived the condition. Newman v. Covenant Mut. Ins. Asso. 76 Iowa, 56, 1 L.R.A. 659, 14 Am. St. Rep. 196, 40 N. W. 87.

It is not a defense to an open policy of insurance requiring the insured to insure goods covered by the policy from the port where they are shipped, that the goods were insured from an intermediate port, where the goods were so insured with the knowledge and at the suggestion of the company's agent. Arkansas Ins. Co. v. Bostick, 27 Ark. 539. The court said that the insured had a right to regard any objection on this ground as waived when there was no concealment as to the place from which the goods were shipped. Certainly it could not be allowed as a defense to the policy without operating as in the nature of a fraud on the insured, who had acted on the belief that the acts of the agent were the acts of the company, and who, knowing all the circumstances, indorsed the goods from the intermediate port.

In Hartford F. Ins. Co. v. Post, 25 Tex. Civ. App. 428, 62 S. W. 140, the court said that if, at the time the policy was issued. the agent had knowledge of the existence of facts which would render the contract void in its inception if its provisions were insisted on, it would be presumed that such provisions were waived, as a contrary presumption would impute to the company the fraudulent intent to deliver and receive pay for an invalid policy.

But the doctrine of waiver will not be carried so far as to validate a policy where the insured had no insurable interest. In Agricultural Ins. Co. v. Montague, 38 Mich. 548, 31 Am. Rep. 326, a quantity of silver was insured which turned out not to belong to the insured, but to his wife. It was urged