landlord want of knowledge. 2. The rule that want of knowledge on the part of a property owner of a violation by his tenant of the provisions of a policy of insurance on the property will not prevent a forfeiture of the policy has no application where the act was with the knowledge and consent of the agents of the insurer. Same reformation — estoppel. one opinion. Appellee, Hyman, who was plaintiff below, was the owner of a certain brick-store building on Harrison avenue, in the city of Leadville. On August 1, 1901, and on April 28, 1902, Wright & Stotesbury, agents of the appellant insurance companies, who were defendants below, issued to him two policies of fire insurance for $2,000 each in said companies, respectively. These policies were the same in form, and were what is known as "New York standard policies." Each contained the following, among other, conditions: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if ... illuminat 3. An insured need not procure a reformation of his policy in equity so as to showing gas or vapor be generated in the dea waiver of a forfeiture before bringing suit scribed premises (or adjacent thereto for en the policy, but may plead waiver or esuse therein)." toppel in avoidance of the defense of forfeiture. Same explosion burden of proof. "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if ... there be kept, used, or allowed on the said abovedescribed premises benzin, gasolene . or petroleum, or any of its products of greater inflammability than kerosene oil." "This company shall not be liable for loss caused directly or indirectly by invasion . . or (unless fire ensues, and in that event for the damages by fire only) by explosion of any kind." "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 of ficer, 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 the 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 power, to waive 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 ground floor of the building was occupied as a clothing store by Sands Brothers, tenants of the plaintiff. About the 26th of May, 1902, Wright & Stotesbury also issued to them a policy in the German American Insurance Company on their stock of goods. This policy was similar in form to those issued to Hyman. Subsequently, and about June 21, 1902, at the request of Sands Brothers. Wright & Stotesbury attached to their policy a written permit for the installation of a certain specified apparatus and device for the generation and use of the vapor of gasolene for lighting purposes on the premises. This apparatus or plant either had already been, or was at once, installed in the back part of the storeroom. Neither Sands Brothers, nor Wright & Stotesbury, communicated to Hyman any knowledge of the granting of said permit to Sands Brothers; nor did Hyman have any knowledge, until after the fire, either of the granting of such permit, or of the installation of the gasolene lighting plant upon the premises. Hyman's policies remained apparently in full force, and without any intimation from Wright & Stotesbury or otherwise, until after the explosion and fire, that defendants intended to disclaim liability thereunder. About 9:30 P. M. on the evening of July 3d the building was seriously damaged by fire and explosion. As to whether the explosion took place first and the fire afterwards, or whether the fire preceded and the explosion was an incident thereto, is a matter upon which the parties differ in their conclusions drawn from the evidence. Appellants contend that the explosion occurred first, and that the fire resulted therefrom. Appellee contends that the fire was first and the explosion afterwards, as an incident thereto. Substantially all of the evidence in relation to this spe. eife subject is included within the testimony of three witnesses, Carlson, Snyder, and Coble. This testimony is sufliciently stated in the opinion. As to the extent of the damages, there is some conflict of evidence. But the court below who tried the case, a jury being expressly waived, found the total amount thereof to be in excess of the $4,000 covered by the two policies. There was also evidence upon the subject of the relative proportions of the loss due to the explosion and to the fire, respectively. A witness for plaintiff, having fixed the total loss at $4,082.05, on rebuttal attributed one third of that sum to the explosion. One of defend ants' witnesses places the extent of the damage from the explosion at $1,600, and from the fire at $1,450. Another of defendants' witnesses estimates the total damages at $3,800 and the loss by fire at $1,769.80. But the trial court evidently adopted the view that the fire preceded the explosion, and that the explosion was an incident thereto, and rendered judgment for the full amount of the policies, holding that the entire in jury proximately resulted from the fire. v. Western Ins. Co. L. R. 3 Exch. 71; St. John v. American Mut. F. & M. Ins. Co. 11 N. Y. 516; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44, 19 L. ed. 65; Briggs v. North American & M. Ins. Co. 53 N. Y. 446; Smiley v. Citizens' F. M. & L. Ins. Co. 14 W. Va. 33; Tanneret v. Merchants' Mut. Ins. Co. 34 La. Ann. 249. A violation by a tenant of the assured of any of the prohibitions of a policy of fire insurance is a violation by the assured himself. La Force v. Williams City F. Ins. Co. 43 Mo. App. 518; Steinmetz v. Franklin F. Ins. Co. 6 Phila. 21; Fire Asso. of Philadelphia v. Williamson, 26 Pa. 196; Kelly v. Worcester Mut. F. Ins. Co. 97 Mass. 284. Upon the introduction of the gasolene and gas generating apparatus the policies became void, and could not be revived save by a new contract. German Ins. Co. v. Russell, 65 Kan. 373, 58 L.R.A. 234, 69 Pac. 345; Connecticut F. Ins. Co. v. Smith, 10 Colo. App. 121, 51 Pac. 170. The forfeiture as to the landlord's policy was not waived. Merchants' Ins. Co. v. New Mexico Lumber Co. 10 Colo. App. 223, 51 Pac. 174; Goldin v. Northern Assur. Co. 46 Minn. 473, 49 N. W. 246. The insured cannot, in the case of an executed and delivered policy, claim a waiver of its conditions except as the same shall be evidenced in the manner provided for by the policy itself, where the authority of the agent is restricted. Quinlan v. Providence Washington Ins. Co. 133 N. Y. 356, 28 Am. St. Rep. 645, 31 N. E. 31; Weed v. London & L. F. Ins. Co. 116 N. Y. 106, 22 N. E. 229; Ermentrout v. Girard F. & M. Ins. Co. 63 Minn. 305, 30 L.R.A. 346, 56 Am. St. Rep. 485, 65 N. W. 635; Bush v. Westchester F. Ins. Co. 63 N. Y. 531; Gould v. Dwelling-House Ins. Co. 90 Mich. 302, 51 N. W. 455; Kyte v. Commercial Union Assur. Co. 144 Mass. 43, 10 N. E. 518; Biggs v. North Carolina Home Ins. Co. 88 N. C. 141; Gross v. Milwaukee Mechanics' Ins. Co. 92 Wis. 656, 66 N. W. 712; Hankins v. Rockford Ins. Co. 70 Wis. 1, 35 N. W. 34; Gladding v. California Farmers' Mut. F. Ins. Co. 66 Cal. 6, 4 Pac. 764; Walsh v. Hartford F. Ins. Co. 73 N. Y. 5; Cleaver v. Traders' Ins. Co. 65 Mich. 527, 8 Am. St. Rep. 908, 32 N. W. 660; Couch v. City F. Ins. Co. 38 Conn. 181, 9 Am. Rep. Mr. Sylvester G. Williams, for appel- 375; Catoir v. American L. Ins. & T. Co. lants: The court should have excluded the explosion damage from its finding as to the measure of the loss. Hustace v. Phenix Ins. Co. 175 N. Y. 292, 62 L.R.A. 651, 67 N. E. 592; Stanley 33 N. J. L. 487; Allemania F. Ins. Co. v. Hurd, 37 Mich. 13, 26 Am. Rep. 491; First Nat. Bank v. Lancashire Ins. Co. 62 Tex. 466; Merserau v. Phoenix Mut. L. Ins. Co. 66 N. Y. 274; Clevenger v. Mutual L. Ins. Co. 2 Dak. 114, 3 N. W. 313; Ruthven Bros. v. American F. Ins. Co. 92 Iowa, 316, 60 N. same. Helm, J., delivered the opinion of the court: The innocence and good faith of plaintiff are not impugned. No bad faith is in any manner imputed to him. He is not even charged with negligence; and, relying on the honor and integrity of defendants and their agents, he honestly supposed his policies invulnerable until they were challenged after the fire. At the time of granting the suspension of the gasolene provision in Sands Brothers' policy, as well as when issuing the same, Wright & Stotesbury may fairly le presumed to have had in mind the policies previously issued to plaintiff. It is true Stotesbury testifies that, when grant dealing with this class of policies, and were familiar with the gasolene clause uniformly included therein. They must be regarded as aware of the fact that in suspending or waiving this provision they were sanctioning the violation of plaintiff's contracts by his tenants. 1. The first ground relied on for a reversal of the judgment below is that both of the policies in suit were rendered wholly voiding the gasolene permit to the tenants, it by the installation and use of the gasolene did not "occur" to him that plaintiff had lighting plant in the building insured; each policies of insurance on the building; also, of said policies prohibiting the generation that this fact did not "occur" to him until and use of gasolene vapor on the premises after the fire. But Wright & Stotesbury without the consent of the insurer in writ- solicited plaintiff's insurance, and issued his ing. Wright & Stotesbury represented both policies themselves. From the date of issue defendants in the city of Leadville. They of the second policy to plaintiff till the issue were furnished with blank policies of insur- of Sands Brothers' policy upon the goods in ance duly signed by the president and sec- plaintiff's building less than four weeks inretary, with authority to fill out and issue tervened, and less than seven wecks passed the same. They had power to solicit insur- between the former date and the suspension ance, to receive applications and premiums, of the gasolene provision in the latter polto issue, countersign, renew, and cancel policy. Wright & Stotesbury were constantly icies in that district. They were therefore general agents of the companies, and possessed all the authority devolved by law upon such agents. Acting in that capacity, they issued both policies to plaintiff, and also issued the policy to Sands Brothers, who were tenants of plaintiff. The action of Wright & Stotesbury in suspending the operation of the gasolene provision in Sands Brothers' policy is not challenged. Defend ants themselves make no objection in this regard. They admit that the agency was sufficiently broad for such purpose; and it is not questioned but that Wright & Stotes bury could also have suspended the similar provision in both of plaintiff's policies had they been requested by him so to do. But plaintiff did not make this request for the very obvious reason that he had no notice or knowledge of the suspension of the gaso lene provision in the policy taken out by his tenants, or that a gasolene plant had been installed and was in use on the premises. Yet it is insisted on behalf of defend ants that the installation of the gasolene plant rendered both of plaintiff's policies void; he having failed to apply to Wright & Stotesbury and procure a suspension of the gasolene clause therein, and that for this reason he is not entitled to recover anything in the present action. That such a view would, under the circumstances, result in gross injustice as well as hardship to plaintiff, must be admitted; and, unless coerced by cogent and powerful authority so to do, we are not disposed to adopt the It is suggested by counsel in argument that Wright & Stotesbury had no actual knowledge of the fact that their permission was utilized by installation of the gasolene plant. But this, if true, would not be significant; for in granting the permission they must be held to have anticipated the installation. Besides, Stotesbury says, when speaking of the party who applied for the suspension of the gasolene clause, "I knew he would not come in and ask for that permit unless the plant was in there." Had Wright & Stotesbury notified plaintiff, or in any manner called his attention to the suspension of the gasolene provision in his tenants' policy, he would undoubtedly have at once required the removal of the plant, or have made application for a like suspension in the two policies issued to him. And we may assume that such application would have been promptly granted. Counsel for defendants pronounces this assumption a "fallacy." He says that "it is quite as likely" that plaintiff's application, had he made one, would have been refused. He further says "the company had the right to terminate either or both of these policies by cancelation." That is to say, the company through its authorized agents first issues the policies In the cases at bar the alleged violation of the prohibitory clause of the contracts occurred subsequent to the issuing of the policies sued on. But the rule of waiver, or, in some instances, where the facts justify, of estoppel, is also applied even to cases where the general agent of the insurer has knowledge of the violation of, or conflict with, such prohibitory clause at the time of issuing the policy; that is to say, the principle is even likewise applied to cases where the breach exists at the very inception of the contract. In Pomeroy v. Rocky Mountain Ins. & Sav. Inst. 9 Colo. 295, 59 Am. Rep. 144, 12 Pac. 153, the facts were that, after a policy of life insurance had been forfeited for nonpayment of dues, the general agent of the insurance company permitted the same to be reinstated. When he granted such reinstatement, the agent was fully apprised of the assured's impaired health through intemperance, a condition that rendered the policy void. This court denied the insurer's contention that the policy was thus rendered nugatory, and sustained the recovery thereon. At page 301 of 9 Colo., the following language is employed: "Johnson, having permitted the renewal of the policy and its assignment with full knowledge of Barton's impaired health by reason of his intemperate habits, for $4.000, receiving from the owner of the is the rule even where the forfeiture takes building the premiums, and retaining the place entirely independent of any agency of same. It then, by and through the same the insurer or its representative. How much identical agents, gives the tenants permis- more strictly should this rule be applied sion to install a gasolene plant in the build- | where, as in the present instance, the alleged ing, which act, without a like permission forfeiture results from the direct and affirmto the landlord, renders his insurance void. ative action of the insurer's duly accredited Yet it is denied that there was any legal agent! obligation to comply with the landlord's request, had he made such request, for a like suspension of the gasolene provision in his policies. We are not prepared to accept this view of the law. We do not think it has yet received judicial sanction, and are unwilling to take the initiative in giving such sanction. The knowledge of Wright & Stotesbury was the knowledge of the defendant companies; and their action under the circumstances may be presumed to have been the action of those companies. What ever view we would adopt were Wright & Stotesbury themselves the insurers must therefore be adopted with reference to these defendants. Restrictive provisions like the one under consideration are inserted into these contracts for the benefit of the insurer. Forfeitures are not favored in law, and the party for whose benefit they are in serted may always decline to insist upon them. Besides, the fact that these particular insurers intended to sometimes suspend or waive the present ground of forfeiture is shown by the insertion of an express provision for so doing. If the action of plaintiff's tenants could, under the circumstances, operate as a forfeiture of plaintiff's policies because of a violation of the gasolene provision therein contained, it was the duty of defendants to notify him of such forfeiture, and either suspend the forfeiture provision in his policies, or, if he failed to request such suspension, at least to cancel those policies altogether and inform him of such cancelation. Defendants cannot, under the circumstances, be permitted to remain silent, treating the policies as valid and binding contracts until a fire occurs and then assert the invalidity of such contracts; for, if the insurer has knowledge of a breach of a condition in the policy, but treats it as still operative and valid by failing to assert the right to forfeit and cancel the same, the policy will continue in full force and effect. Home F. Ins. Co. v. Kuhlman, 58 Neb. 488, 76 Am. St. Rep. 111, 78 N. W. 936; Hamilton v. Home Ins. Co. 94 Mo. 368, 7 S. W. 261; Von Bories v. United Life F. & M. Ins. Co. 8 Bush, 133; Cromwell v. Phoenix Ins. Co. 47 Mo. App. 109; Pollock v. German F. Ins. Co. 127 Mich. 460, 86 N. W. 1017; Dick v. Equitable F. & M. Ins. Co. 92 Wis. 46, 65 N. W. 742; Phenix Ins. Co. v. Hart, 149 Ill. 521, 36 N. E. 990; Viele v. Germania Ins. Co. 26 Iowa, 9, 96 Am. Dec. 83. Such having at the time received from the plaintiff payment of all back dues necessary to its renewal, and thereafter payment of the premiums on the policy as they became due, is to be regarded as having waived the condition respecting the impairment of health of the insured by intemperate habits. The company cannot be allowed to treat the contract as valid for the purpose of collecting dues and as void when it comes to paying the insurance; or, as otherwise stated, the company cannot be permitted to occupy the vantage ground of retaining the premium if the party continued in life, and repudiating it if he died.'" Union Nat. Bank v. Manhattan L. Ins. Co. 52 La. Ann. 36, 26 So. 800; Georgia Home Ins. Co. v. Kinnier, 28 Gratt. 88; Shafer v. Brooklyn Phonix Ins. Co. 53 Wis. 361, 10 N. W. 381; Phenix Ins. Co. v. Hart, 149 Ill. 513, 36 N. E. 990; Improved Match Co. v. Michigan Mut. F. Ins. Co. 122 Mich. 263, 80 N. W. 1088; Rhode Island Underwriter's Asso. v. Monarch, 98 Ky. 308, 32 S. W. 959; Mutual F. Ins. Co. v. Ward, 95 Va. 231, 28 S. E. 209. Nor does the presence of a provision in the policy that no officer or agent shall have power to waive any of the restrictive clauses except where such waiver is expressly authorized, or that such waiver, when permissible, shall in no case be effective unless written upon or attached to the policy, change or modify the foregoing conclusions. The general agent's power to make and rescind contracts implies the power to modify the same. The insurer is estopped from asserting a forfeiture on the ground of such agent's want of authority to waive the forfeiture, or because of absence of the formal written indorsement upon the instrument suspending the prohibitory provision. Farmers' & M. Ins. Co. v. Nixon, 2 Colo. App. 266, 30 Pac. 42; Northam v. International Ins. Co. 45 App. Div. 177, 61 N. Y. Supp. 45; Niagara Ins. Co. v. Lee, 73 Tex. 641, 11 S. W. 1024; Phenix Ins. Co. v. Munger, 49 Kan. 194, 33 Am. St. Rep. 360, 30 Pac. 120; James v. Mutual Reserve Fund Life Asso. 148 Mo. 10, 49 S. W. 978; Phenix Ins. Co. v. Hart; Dick v. Equitable F. & M. Ins. Co.; Shafer v. Brooklyn Phonix Ins. Co; and Viele v. Germania Ins. Co., supra; Lamberton v. Connecticut F. Ins. Co. 39 Minn. 129, 1 L.R.A. 222, 39 N. W. 76. The principle urged by defendants, and sometimes recognized, that the assured cannot maintain his action by showing that the violation of the contract was an act of his tenant without his consent or knowledge, has no application to the case at bar. Plaintiff in this case does not rely solely upon the fact that the alleged violation of his policies resulted from the act of his tenants. The principle mentioned applies only where the tenant, without the consent or approval of the insurer, commits some act in derogation of his landlord's policy. No court would hold the same applicable to a case where the insurer, without notice to the landlord, expressly gives the tenant permission to commit the act forbidden by the landlord's policy. To so hold would be to sanction a gross injustice and open the door to fraud. It would be to announce a rule inconsistent with the authorities, and sure to create universal surprise and protest. Nor is the argument advanced by defendants sound, that plaintiff must first go into equity, and have the contracts reformed so as to embody the waiver or suspension of the prohibitory clause in question. When to plaintiff's action upon the contract the insurer pleads a forfeiture for violation of a given restrictive clause thereof, plaintiff may plead in reply facts constituting a waiver of such forfeiture or an estoppel with reference thereto. This is not bringing in by replication a new and different cause of action. There is no attempt to reform the policy and rest the recovery upon a new or different contract. The action remains upon the original contract. The replication simply shows that defendant has no right to plead or rely upon the alleged violation of that contract. And, if plaintiff recovers, he recovers upon the contract as it was originally written. Defendant simply is not allowed to establish the asserted forfeiture or violation, and thus defeat the recovery. This view is not inconsistent with Thompson v. White, 25 Colo. 226, 54 Pac. 718, cited by defendants. In that case the action was originally brought against two individuals. The replication attempted to plead ground for relief against a partnership. And it is needless to say that a right to recover against an individual and a right to recover against a partnership are two separate and distinct causes of action. We have not deemed it necessary in the foregoing discussion to consider the distinction based upon the status of the two defendant companies, urged by their counsel. This alleged distinction rests upon the fact that the suspension of the gasolene provision was made by the German American company by which Sands Brothers' policy was issued, and that the German Alliance company issued no policy to Sands Brothers, and itself granted no suspension of a gasolene restriction in any such policy. The conclusion may fairly be drawn from the evidence that defendants, while separate corporate entities and with slightly different names, are in reality one and the same company; or at least that, for the purposes of determining the present question, they should be treated as if they were the same company. The German Alliance was called the "baby company" of the German American. The two companies were "associated together in their operations." Wright & Stotesbury were appointed agents "under the same authority," and they "made reports to the same persons back in New York." When asked if he did not inform plaintiff that they "were practically one and the same company,” Stotesbury was not prepared to say that he did not. Jessup, the adjuster, was also the agent of both companies, with broad and extensive powers. He represented them both after the fire in negotiations with plaintiff for a settlement under both of the policies. Moreover, Wright & Stotesbury were, as we have seen, the general agents of both of these companies. Their knowledge and conduct were the knowledge and conduct of the companies. And we have no hesitancy in declaring that good faith required them to notify plaintiff of the permission granted his tenants to install the gasolene plant, and give him an opportunity to cause its |