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the business of another principal, such knowledge is not imputed to the insurer unless shown to have been in the agent's mind when acting for the latter. (p. 1074.)

INSURANCE, Forfeiture, When not Waived by Knowledge of a Breach of Condition.-The knowledge by an insurer of a breach of condition forfeiting a policy does not amount to a waiver. There must exist, in addition, some positive act of confirmation upon which, in connection with the knowledge, a waiver may be predicated, and by force of which the broken contract may be said to be revived. (p. 1075.)

Robert W. Matlett, for the plaintiff in error.

White, Tunstall & Thom, for the defendant in error.

695 BUCHANAN, J. This was an action of assumpsit instituted against the German Alliance Insurance Association on a fire insurance policy by C. B. Foreman, for the benefit of the Prudential Building and Loan Association.

The defense of the insurance company was that the premises, after the policy had been issued, became and remained vacant, in violation of that condition of the policy which declared that the entire policy shall be void if the building therein described be or become vacant or unoccupied for ten days.

The plaintiff admitted such vacancy, but claimed that the forfeiture resulting therefrom had been waived by the insurance company. Upon the trial of the cause, the defendant, without introducing any evidence, demurred to the plaintiff's evidence. The court sustained the demurrer, and gave judgment for the defendant. To that judgment this writ of error was awarded.

696 It appears that the policy, which was for one year, was issued on or about the 8th of May, 1902, through Albert Morris & Co., the general agents of the insurance company in the city of Norfolk. A like policy had been taken out by the insured for the previous year, but upon his informing the building and loan association, which had a mortgage upon the property, that he could not pay the premium upon a policy for another year, that association took out the policy sued on in his name, with a provision that the loss, if any, should be payable to the building and loan association as its interest might appear. Albert Morris & Co. were also agents in that city for the Prudential Building and Loan Association, and were authorized to pay the premiums on policies of insurance in which it was interested, when such premiums fell due and were not paid, and could not be collected by them from the

insured. The premium on the policy sued on not having been paid by the insured, Albert Morris & Co. paid it to the insurance company on the 5th of June.

On the 5th of July the insured vacated the premises, and between that time and the 10th of that month gave the key of the house to Albert Morris & Co., as the agents of the Prudential Building and Loan Association, informing them that he could not keep up the payments due the building and loan association on its loan secured upon the property. Albert Morris & Co., about two weeks after that, notified him that if he did not pay the premium they would have to collect it from the building and loan association. The insured did not pay them, nor did he know at that time that they had paid the premium to the insurance company under their agreement with the building and loan association. Between that time and the following October, that association settled with or repaid Albert Morris & Co. the amount which they had advanced in paying the premium on the policy.

697 In November of that year, the buildings on the premises were destroyed by fire. When the insurance company was notified of the loss, it at once denied its liability on the ground that the vacancy clause in the policy had been violated.

During the trial the plaintiff offered to read to the jury a receipt dated in October, 1902, given to the building and loan association by Albert Morris & Co., for eighty-three dollars, the aggregate amount of the premiums on eight insurance policies, one of which was the premium on the policy sued on. The receipt was objected to on the ground that it did not purport to have been given by Albert Morris & Co. as agents of the insurance company. The court sustained the objection and refused to allow the receipt to be read in evidence. That action of the court is assigned as

error.

The receipt not only did not show upon its face that it was given by Albert Morris & Co. as the agents of the insurance company, but it appeared from the evidence of Albert Morris, who executed the receipt for his firm and proved their signature thereto, that the receipt was given by his firm not as the agents of the insurance company, but for insurance premiums which they had paid or advanced for the building and loan association under its agreement with them, on policies in which it was interested. This being so, the court was clearly right in not admitting the receipt in evidence.

Am. St. Rep., Vol. 113-68

The next question to be determined is, Has the plaintiff shown that the forfeiture was waived?

It is well settled that any acts, declarations or course of dealing by an insurance company, with knowledge of facts constituting a breach of a condition in the policy, leading the party insured honestly to think that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the insurance company from insisting upon the forfeiture, though it might be claimed under the express letter of the policy: Georgia Home Ins. Co. v. Kinnier's Admx., 28 Gratt. 88; Morotock Ins. Co. v. Pankey, 91 Va. 698 259, 21 S. E. 487; Virginia Fire etc. Ins. Co. v. Richmond Mica Co., 102 Va. 429, 102 Am. St. Rep. 846, 46 S. E. 463, and cases there cited; Insurance Co. v. Eggleston, 96 U. S. 572, 24 L. ed. 841.

Applying that principle to the facts of this case, it is manifest, we think, that the plaintiff in error has failed to show that the insurance company has waived or estopped itself from relying upon the forfeiture set up as a defense. The premium was paid on June 5th, and the building did not become vacant until July 5th, and there is no evidence that the insurance company knew that it became vacant before the fire occurred.

It is argued that its agent, Albert Morris & Co., knew that it was vacant, and that their knowledge was notice to the insurance company. It is true that Albert Morris & Co. did know it, but that knowledge was acquired by them as agents of the building and loan association, and not while attending to the affairs of the insurance company. Knowledge acquired in that manner, in order to be binding upon the insurance company, would have to be present in the agent's mind at the time he did the act which it is claimed constituted the waiver, and the burden is on the party relying upon the waiver to prove this. That such knowledge was in the agent's mind may be shown by circumstances as well as by direct evidence: Morrison v. Bausemer, 32 Gratt. 225; Johnson's Exr. v. National Ex. Bank, 33 Gratt. 473; 2 Minor's Institutes, 4th ed., 980; 1 Joyce on Insurance, sec. 544; Mechem on Agency, sec. 721; Martin v. South Salem L. Co., 94 Va. 28, 26 S. E. 591.

But even if the knowledge of Albert Morris & Co. was the knowledge of the insurance company, it did no act afterward to the prejudice of the insured, or the beneficiary in the policy, or which can be held to have been a waiver of the for

feiture. If the insured, when called upon by Albert Morris & Co. to pay the amount of the premium two weeks after the house had been vacated, had paid that sum to them as premium on the policy, believing that they were collecting it as the agents of the insurance 699 company, then he might have had the right to rely upon that as a waiver of the forfeiture; but he did not pay it, or pay any attention to their request. Neither did the insurance company, or its agents, Albert Morris & Co., do any act or make any declaration or pursue any course of conduct which gave the building and loan association the right to believe that the forfeiture was or would be waived. The evidence clearly shows that when that association paid Albert Morris & Co. the amount of the premium, it paid it not as a premium due the insurance company, but as a debt due from it to Albert Morris & Co. as its own agents, for money advanced by them to pay the premium before the building had become vacant or the forfeiture had been incurred.

Mere knowledge by the insurance company of the existence of the breach of the contract does not of itself amount to a waiver or an estoppel. There must exist, in addition to a knowledge of the breach, some positive act of confirmation upon which in connection with the knowledge a waiver may be predicated, and by force of which the broken contract may be said to be revived: Richards on Insurance, secs. 78, 79; 2 May on Insurance, sec. 507; Vance on Insurance, p. 374; Gibson E. Co. v. Liverpool etc. Ins. Co., 159 N. Y. 418, 54 N. E. 23.

Having reached the conclusion that the acts and conduct of the agents of the insurance company, conceding that they were binding upon it, were not sufficient to establish a waiver of the forfeiture, or to estop the insurance company from setting it up as a defense, it will be unnecessary to consider the effect of that provision in the policy which declares that no officer, agent, or representative of the company shall have the power or be deemed or held to have waived any condition of the policy unless such waiver shall be written upon or attached to it.

We are of opinion that there is no error in the judgment of the court of law and chancery, and that it must be affirmed.

The Waiver of Conditions and Forfeitures in insurance policies by agents of the insurer is the subject of a recent monographic note to Johnson v. Aetna Ins. Co., 107 Ga. 99-149.

SELDEN'S EXECUTOR v. KENNEDY.

[104 Va. 826, 52 S. E. 635.]

THE GRANT OF LETTERS of Administration on the Estate of a Live Man, as if he were dead, is void. (p. 1077.)

LETTERS OF ADMINISTRATION on the Estates of Absentees. A statute providing for the taking of an absentee's property and administering on it when he is alive, without his knowledge or consent, and in a proceeding to which he is not a party and of which he has no notice, is in violation of his rights under the fourteenth amendment. (p. 1079.)

THE LACHES Which will Defeat the Assertion of a Right must be such as to afford a reasonable presumption of satisfaction or of an abandonment of the claim, or such as to prevent a proper defense by reason of the death of parties, loss of evidence, or otherwise. (p. 1079.)

LACHES in Suing for a Legacy, When not Fatal.-When one's estate has been administered upon as if he were dead, because of his absence from the state unheard of for more than seven years, and a legacy due him has been paid to his administrator, a suit brought by him to recover such legacy some fifteen years after becoming entitled thereto is not barred by laches, when the party whose duty it was to pay the legacy survives, no evidence has been lost by death, no records have been destroyed or papers lost, no uncertainty exists as to the amount due, and no presumption of payment. (p. 1080.)

Loyall & Taylor, for the appellant.

Burroughs & Brother, for the appellee.

827 BUCHANAN, J. This suit was instituted by C. E. Kennedy against C. W. Grandy, surviving executor of Dr. William Selden, deceased, to recover a legacy.

It appears that Dr. Selden, by his last will and testament, which was probated in November, 1887, bequeathed to Charles H. Kennedy the sum of one thousand dollars. Kennedy died before the testator, leaving three children, who under section 2523 of the Code were entitled to the legacy. The executors paid to two of the children their portion of the legacy. Upon the seventh day of January, 1896, the corporation court of the city of Norfolk, upon proof that C. E. Kennedy, the other child, had been a resident of this state and had since gone from and had not returned to the state, more than seven years prior to that date, adjudged, ordered and decreed that he was and should be presumed to be dead, as declared by section 3373 of the code, and appointed T. D. Kennedy, his brother, administrator of his

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