trary and sounder view is supported by good authority.24 Finally, a still more explicit provision has been attempted which confines the authority to modify or waive conditions to certain specified officers who, it is provided, are authorized to make such modifications or waivers in writing on the policy. Even with such a provision parol waivers have been upheld; 25 though other courts enforce the terms of the policy.26

A distinction seems possible in this respect between a waiver based on estoppel or on a promise, on the one hand, and election on the other. While an agent's powers to promise or to represent may be limited, an insurance company having knowledge of a breach cannot retain a benefit to which it is only entitled on the theory that a policy continues in force, and also deny the validity of the policy. And if the company by its agents or officers authorized to receive and retain the benefit does so retain benefits which it is entitled to retain only on the assumption that the policy continues, the legal consequences of election will follow although the policy may state in express terms that they shall not." A statute also may give one who solicits insurance or receives premiums the powers of an agent. 28 Likewise if an agent is authorized to make an oral contract for insurance, an oral contract on new consideration in substitu

Hankins v. Rockford Ins. Co., 70 Wis. 1, 35 N. W. 34; Stevens v. Queen Ins. Co., 81 Wis. 335, 51 N. W. 555, 29 Am. St. Rep. 905, and see cases supra, n. 41.

27 Beatty v. Mutual Reserve Fund L. Assoc., 75 Fed. 65, 21 C. C. A. 227; Crumley v. Sovereign Camp, 102 S. Car. 386, 86 S. E. 954. Thus where an insurance company receives insurance premiums, having knowledge of a breach, and retains them, the retention will amount to an election to choose the benefit of the premiums rather than the avoidance of the policy, in spite of clauses requiring waivers to be in writing. Bennett v. Union Central Life Ins. Co., 203 Ill. 439, 67 N. E. 971; Union Central Life Ins. Co. v. Whetzel, 29 Ind. App. 658, 65 N. E. 15; Northam v. International Ins. Co., 45 N. Y. App. D. 177, 61 N. Y. S. 45, affd. 165 N. Y. 666, 59 N. E. 1127. The same principle was applied in Manchester v. Guardian Assur. Co., 151 N. Y. 88, 45 N. E. 381, 56 Am. St. Rep. 600, where a general agent with authority to indorse a waiver promised but failed to go to a mortgagee of the insured property who held the policy,

and make the required indorsement. See also Kotwicki v. Thuringia Ins. Co., 134 Mich. 82, 95 N. W. 976. Cf. Northam v. Dutchess Co. Mut. Ins. Co., 166 N. Y. 319, 59 N. E. 912, 82 Am. St. Rep. 655. Where the agent, in reply to a statement of the insured that the insured property had been assigned, and that the policy was locked up in a safe which he could not open, said, "I will see that the insurance is all right." In this case and in Baumgartel v. Providence, etc., Ins. Co., 136 N. Y. 547, 32 N. E. 990, where the agent said, "All right, I will attend to it," the court held that there was no estoppel. There was "at best but a promise to make the proper indorsement when the policy should be presented to the agent." A still more difficult case to distinguish from Manchester v. Guardian Ins. Co., supra, is Perry v. Caledonian Ins. Co., 103 N. Y. App. Div. 113, 93 N. Y. S. 50.

28 A Florida statute to this effect was sustained in American F. Ins. Co. v. King Lumber & Mfg. Co., (U. S. Oct. Term, 1918), 39 S. Ct. Rep. 431.

tion for a previous written policy may well be held valid; the prohibition in the policy against any but written modifications being construed as aimed only at changes in the policy without additional premium. 29

§ 761. Whether an ineffectual attempt to collect a premium deprives the insurer of a known defence.

An ineffectual attempt without suit to collect a premium after the policy by its terms has become invalidated by nonpayment has been held to preclude the insurer from thereafter, for that reason, refusing to fulfil its contract. 30 These decisions find support in a dictum by Parke, B., in regard to the analogous case of a landlord electing to continue a tenancy rather than disposess a tenant for breach of condition. He said "I think that an absolute unqualified demand of the rent [accruing subsequent to breach of condition] by a person having sufficient authority, would have amounted to a waiver of the forfeiture." 31 This dictum, however, seems never to have been followed.32 Such a result seems undesirable. The facts doubtless show that the insurer or landlord is willing to accept payment at the time when demand is made and, on condition that payment is then made, to disregard the delay up to that time; but they do not show a willingness to keep the contract in force even though the payment is not made. The decisions are inconsistent with the cases of election referred to in the preceding section, and are opposed by other authorities holding that merely demanding a premium is not a conclusive election to continue a policy of insurance in force.33 Moreover, a de"Mackintosh v. Agricultural F. Ins. Co., 150 Cal. 440, 89 Pac. 102, 119 Am. St. Rep. 234.

Galliher v. State Mutual Life Ins. Co., 150 Ala. 543, 43 So. 833, 124 Am. St. Rep. 83; Union Central Life Ins. Co. v. Burnett, 136 Ill. App. 187; Union Central Life Ins. Co. v. Spinks, 119 Ky. 261, 83 S. W. 615, 69 L. R. A. 264; Walls v. Home Ins. Co., 114 Ky. 611, 71 S. W. 650, 102 Am. St. Rep. 298; New England Mutual Life Ins. Co. v. Springgate, 129 Ky. 627, 112 S. W. 681, 113 S. W. 824; Olmsted v.

Farmers' Mutual Fire Ins. Co., 50
Mich. 200, 15 N. W. 82; Robinson v.
Pacific F. Ins. Co., 18 Hun, 395.

31 Doe v. Birch, 1 M. & W. 406, 408. 32 It was quoted in Dendy v. Nicholl, 4 C. B. (N. S.) 376, 735, with the remark (at page 386) "that dictum goes beyond what is necessary in the present case." In Dendy v. Nicholl, it was held that bringing an action for rent accruing subsequent to the forfeiture was a conclusive election to continue the tenancy.

33 Ware v. Millville, etc., Ins. Co., 45

mand of a premium can certainly not amount to an election or surrender of any defence, where the premium has already been earned because the risk attached, and the insurer is entitled to the premium even though the policy is no longer continued in force. Where, however, the insurer is entitled to the premium only on the assumption of the continuance of the insurance, obtaining a judgment for a premium is a conclusive election.34 But demanding payment in justifiable ignorance of material facts will not ordinarily be a binding election; and certainly a demand for payment cannot be, when made upon a condition which the insured never fulfils.36

Even the actual receipt of a premium if accepted conditionally and returned when the condition is not fulfilled is an election to continue insurance in force.37

§ 762. Temporary breach of warranty or condition.

Where a warranty or condition applies to a continuing state of things, as occupancy of premises insured against fire, or the residence of one whose life is insured within certain countries or latitudes, the question may arise whether breach of the condition avoids liability only if loss is caused while the condition is being broken, or because of its breach, or whether the contract is entire and any breach is fatal to any claim upon it, whenever or however arising. The question should properly be regarded as depending on the expressed intention of the parties. Obvious as this is, the cases often assume that there is some principle of insurance law which necessarily involves one or the other result. But it is perfectly possible to make a contract in either form. If, however, the policy states that breach of the condition renders the policy void, the words if given their natural meaning must apply to the whole promise of the insured. Though this construction has been accepted by many courts, 38 others in order to avoid hardship to the insured have construed the contract as merely suspended while

should not be declared to have waived the forfeiture by the mere holding of this money a few days or a reasonable length of time for the health certificate to be furnished, but it appears that the health certificate was not finally furnished until the 6th or 8th of February thereafter. It seems that this of itself would indicate a purpose on the part of defendant not to enforce the provisions of the contract with respect to forfeiture. At any rate, under the established rule of decision in this state, defendant should have returned the assessment promptly or within reasonable time at least or it will be treated as having waived the forfeiture. In Andrus v. Insurance Co., 168 Mo. 151, 165, 166, 67 S. W. 582, a case presenting one feature much resembling this one, our Supreme Court has said substantially, the insurer may not thus retain the assessment and thereafter insist on the forfeiture even

a

though it communicated the fact to the insured that it held such payment on condition that a health certificate would be furnished."

38 Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 14 Sup. Ct. 379, 38 L. Ed. 231; Germania Fire Insurance Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868; Howell v. Equitable Soc., 16 Md. 377; Turnbull v. Insurance Co., 83 Md. 312, 34 Atl. 875; Lyman v. Insurance Co., 14 Allen, 329; Kyte v. Assurance Co., 149 Mass. 116, 21 N. E. 361, 3 L. R. A. 508; First Congregational Church v. Holyoke Fire Ins. Co., 158 Mass. 475, 33 N. E. 572, 19 L. R. A. 587, 35 Am. St. Rep. 508; Mead v. Northwestern Insurance Co., 7 N. Y. 530; Newport Imp. Co. v. Home Insurance Co., 163 N. Y. 237, 57 N. E. 475; Farmers' Ins. Co. v. Archer, 36 Ohio St. 608; Bemis v. Harborcreek Ins. Co., 200 Pa. 340, 49 Atl. 769.