ported by numerous authorities, some of them Eng- 1877. January lish, but mostly American, seem to be established by Term. that case. Geo Home Kinnier's 1. WAIVER OF CONDITIONS-ESTOPPEL.-A condi- V. tion in a policy of fire insurance, that if the risk be adm'x. increased by a change of occupation or other means within the control of the assured, without the written consent of the insurers, "the policy shall be void," being inserted for the benefit of the insurers, they may dispense with a compliance therewith, or waive a forfeiture of the policy incurred by a breach thereof, and thereby become estopped from setting up such condition as a breach in an action for a loss subsequently occurring. 2. WAIVER NEED NOT BE IN WRITING.-And such waiver of the forfeiture arising from the breach of the condition need not be in writing, but may be by parol, at least in a case where the policy is not attested by the corporate seal of the company, and is hence not a specialty. 3. WHAT WILL AMOUNT TO A WAIVER.-Any acts, declarations, or course of dealing by the insurers, with knowledge of the facts constituting a breach of a condition in the policy, recognizing and treating the policy as still in force, and leading the assured to regard himself as still protected thereby, will amount to a waiver of the forfeiture by reason of such breach, and estop the company from setting up the same as a defence when sued for a subsequent loss. 4. NEED NOT BE FOUNDED ON NEW CONSIDERATION.A waiver of conditions, or forfeiture arising from a 1877. breach thereof, need not be founded on any new conJanuary Term. sideration. Geo Home V. Kinnier's 5. POWER OF AGENT TO WAIVE FORFEITURE.—A local agent of a foreign insurance company, clothed adm'x. with authority to effect contracts of insurance, to fix rates of premium, to give consent to the increase of risks and change of occupation of buildings insured, to cancel policies on account of increase of risk, and exercise supervision over the property covered by policies issued at his agency, has power to dispense with conditions and waive forfeitures arising from a breach thereof in the absence of any limitation upon his authority known to the assured. 6. IMPLIED AND INCIDENTAL POWERS.-The foregoing powers are necessary incidents of the general authority of the agent to effect contracts of insurance, conduct the business at his agency, and do all things necessary and proper in the prosecution thereof. 7. EXTENT OF WAIVER.-A waiver of a forfeiture, resulting from a breach occasioned by a change in the occupancy of the building, increasing the risk, extends not only to breaches occasioned by the occupancy before such waiver, but to those resulting from a continuation of such occupancy. I see no error in the refusal to give the instruction as asked, and giving it in the modified form. The third instruction relates to condition two. The court gave it with a construction that the change interdicted by the condition was not intended to include devolution of title upon the heirs by the death of the assured. In this surely there was no error. By the 1877. January Term. Geo Home V. Kinnier's change of title provided against in the condition must have been intended a voluntary disposition or alienation of the property. It could not have been intended to embrace all kinds of transfer of title, for, in condition three, change of title by "foreclosure of mortgage, or levy of execution," is specially provided adm'x. against. It is there declared that such a change shall be "deemed an alienation;" that is by fair construction, an alienation within the operation of condition two. Condition three must therefore be taken to be intended as supplemental to condition two. Moreover, it is to the last degree unreasonable to suppose, that any sane man would ever accept a policy of insurance. against loss by fire, if he understood it, which contained a provision for immediate forfeiture by reason of his death and consequent descent of title to his heirs. Burbank adm'or v. Rockingham Mut. Fire Ins. Co., 4 Fost. (N. H.) 550. The fourth instruction refers to condition six, in regard to the preliminary proofs of loss to be furnished to the company. The evidence showed that such proofs were furnished, although not within the thirty days from the time of loss. Gordon, the agent of the administratrix, after repeated applications, finally succeeded in getting the requisite blank forms for the proofs, which he filled up and delivered to Ivey, and the latter says he sent them to the company. No complaint was ever made by the company as to the regularity or sufficiency of the proofs, or as to the time within which they were furnished. Moreover, there was evidence tending to show that Gordon was prevented from sending the proofs within the thirty days, or at least that the furnishing them within the time. was dispensed with by the company through their agent. The doctrine of waiver and estoppel, already 1877. discussed, applies to this instruction also. Home In- Geo Home V. Kinnier's adm'x. The court committed no error in refusing the instruction asked for, and in giving it as modified. The fifth instruction has been disposed of. The sixth and seventh were refused, and, as I think, properly. The object of the sixth seems to have been to declare as law, that a forfeiture incurred by a breach of any of the conditions of the policy could not be waived, except in writing, if at all, and that a parol waiver by the agent would be nugatory. This proposition has been already determined adversely to the plaintiff in error in disposing of the questions arising upon the other instructions, and need not be further noticed, except to add that the instruction would seem to be faulty for another reason, that it proposed to submit a question of law to the jury for their determination; to wit: whether there had been such a violation of the conditions of the policy as to work a forfeiture. Whether the facts and circumstances which constitute a forfeiture are proved, is a question for the jury; whether when proved they constitute a forfeiture, is matter of law for the court. The seventh instruction asked for was based, as is supposed, on the third condition of the policy, i̇mposing a forfeiture by reason of "a foreclosure of a mortgage." It is sufficient to say that there was no foreclosure of a mortgage in this case, and if a judicial sale under a creditor's bill could by liberal construction be brought within the operation of the condition, still such sale must have been so far perfected as to make it equivalent to the foreclosure of a mortgage. There was no such completed sale in this case. The 1877. January Geo Home V. Kinnier's land with the insured building upon it was, as shown by the record, ordered to be sold before the building Term. was burned, but the sale was never completed. It was made and reported to the court, excepted to, and Ins. Co. never confirmed. On the contrary, it was afterwards set aside and wholly vacated. The purchaser was adm'x. never let into possession, and was never at any time entitled to such possession. By the express terms of the decree ordering the sale, the commissioner, who was appointed to make it, was directed to announce publicly, at the time of sale, "that no sale under the decree should be valid until ratified by the court." This direction would seem to have been unnecessary, but the commissioner followed it, as shown by his report. 2 Dan. Ch. Prac. 1274, 1281. The instruction, called the eighth, in the bill of exceptions, was asked for as an addition to modified instruction No. 2. It may be doubtful whether this instruction might not have been properly given, but at all events the refusal to give it did not and could not prejudice the defendant, because it was substantially covered by the instruction which was substituted for it. The propriety of the instructions given on the motion of the plaintiff's counsel has been settled in considering and determining the questions arising upon the defendant's instructions, and need not be further noticed. See Story on Agency, §§ 77, 106, 126, 134. It only remains to consider the third bill of exceptions taken by the plaintiff in error to the judgment of the court overruling the motion for a new trial, made upon the ground that the verdict of the jury was contrary to the law and the evidence. The bill sets out the facts certified as proved on the trial, and those facts seem sufficient to warrant the verdict. As before stated, there was considerable conflict in the VOL. XXVIII-15 |