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# was burned on or about June 1, 1898; that the plaintiff, on or about July 26, 1898, furnished the defendant with proofs of the loss of said property by fire; that the policy contained the provision hereinbefore mentioned, providing that the policy should be void if the insured had or should thereafter make or procure any other contract of insurance on the property covered by the policy in suit, and that the policy was made subject to such condition, o that no officer, agent, or other representative of the company should have power to waive any provision or condition of the policy except such as by the terms of the policy had been indorsed thereon or added thereto, and that no officer, agent, or representative of the company should have power or be deemed or held to have waived such provision or condition unless such waiver was written upon or attached to the policy, and that no privilege or provision affecting the insurance under the policy should exist or be claimed by the insured, unless so written or attached; that there was at the time of the issuance of the policy in suis other insurance upon the insured property in the sum of $1,500, in the Firemen's Fund Insurance Company; that Borgelt was recording agent of the Northern Assurance Company, at Lincoln, Nebraska, with authority from the defendant company to countersign and issue its policies, and accept fire insurance risks in its behalf, and to collect and receive premiums therefor, and that he had issued the policy sued on as such agent; that Bor. gelt knew, when the policy in the defendant company was issued and delivered to the plaintiff company, that there was then $1,500 subsisting insurance in the Firemen's Fund Insurance Company upon the insured property, issued prior to the date of the policy of the defendant company, and that such knowledge was communicated to said Borgelt by and on behalf of the assured; that the actual cash value of the property covered by the policy in suit and destroyed by fire June 1, 1898, was $4,140; that no consent to concurrent insurance of $1,500 was indorsed on the policy in suit; and that, on August 4, 1898, the amount of the premium paid for the policy was tendered to and refused by the plaintiff. 1- Thereafter motions were respectively made ; by the plaintiff, and defendant for judg* ment upon the findings and special”verdict of the jury, and on January 14, 1899, the motion of the defendant was overruled, and exception was taken by the defendant, and the motion of the plaintiff was sustained, and judgment was entered in favor of the plaintiff and exception was taken by the defendant. A writ of error was prayed for by the defendant and allowed, and the cause was taken to the United States circuit court of appeals for the eighth circuit, where the judgment of the circuit court was affirmed, and the cause was then brought to this court by a writ of certiorari. Over insurance by concurrent policies on the same property tends to cause carelessness and fraud, and hence a clause in the policies rendering them void in case other insurance

had been or should be made upon the property and not consented to in writing by the company, is customary and reasonable. In the present case, such a provision was expressly and in unambiguous terms contained in the policy sued on, and it was shown in the proofs of loss furnished by the insured, and it was found by the jury, that there was a policy in another company outstanding when the present one was issued. It also was made to appear that no consent to such other insurance was ever indorsed on the policy or added thereto. Accordingly it is a necessary conclusion that by reason of the breach of the condition the policy became void and of no effect, and no recovery could be had thereon by the insured unless the company waived the condition. The question before us is therefore reduced to one of waiver. The policy itself provides the method whereby such a waiver should be made: “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 officer, 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 agreement indorsed hereon or added hereto, and as to such provisions or conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver,30 if any, shall be written upon or attached; hereto, nor shall any provision or *permis-" sion affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.” Before proceeding to a direct consideration of the question before us, it may be well to inquire into the principles established by the authorities as applicable to such cases. It is a fundamental rule, in courts both of law and equity, that parol contemporaneous evidence is Hol. to contradict or vary the terms of a valid written instrument. This rule is thus expressed in Greenleaf on Evidence, 12th ed. § 275. “When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object, or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.” The rule is thus expressed by Starkie, Ev. 9th Am. ed. 587: “It is likewise a general and most inflexible rule, that wherever written instruments are appointed, either by the requirement of

law, or by the of: of the parties, to be "assurance,

the repositories and memorials of truth, . other evidence is excluded from being used, either as a substitute for such instruments or to contradict or alter them. This is a matter both of principle and policy; of principle, because such instruments are in their nature and origin entitled to a much higher degree of credit than parol evidence; of policy, because it would be attended with great mischief if those instruments upon which men's rights depended were liable to be impeached by loose collateral evidence.” This rule has always been followed and jo. by the English courts in the case of policies of insurance in writing. • Thus in Weston v. Emes, 1 Taunt. 115, it : was held that parol evidence of what passed * at the time of effecting a policy is not"admissible to restrain the effect of the policy, Mansfield, Ch. J., observing that such “evidence could not be admitted, without abandoning in the case of policies, the rule of evidence which prevails in all other cases; and that it would be of the worst effect if a broker could be permitted to alter a policy by parol accounts of what passed when it was effected.” In Robertson v. French, 4 East, 130, it was held, per Lord Ellenborough, in a suit on a marine policy of insurance, that a parol agreement that the risk should begin at a place disferent from that inserted in the policy, cannot be received in evidence. These cases are cited as establishing the rule in cases of insurance in Marshall on Marine Insurance, 278, and in 1 Arnould on Insurance, p. 277. In Flinn v. Tobin, 1 Moody & M. 367, Lord Tenterden, Ch. J., said that “the contract between the parties is the policy which is in writing, and cannot be varied by parol. No defense, therefore, which turns on showing that the contract was different from that contained in the policy, can be admitted; and this is the effect of any defense turning on the mere fact of misrepresentation without fraud.” So, where, in assumpsit for use and occupation, upon a written memorandum of lease, at a certain rent, parol evidence was offered the plaintiff of an agreement at the same time to pay a further sum, being the ground rent of the premises, to the ground landlord, it was rejected. Preston v. Merceau, 2 W. B1. 1249. And where, in a written contract of sale of a ship, the ship was particularly described, it were held that parol evidence of a further descriptive representation, made prior to the time of sale, was not admissible to charge the vendor without proof of actual fraud; all previous conversations being merged in the written contract. Pickering v. Dowson, 4 Taunt. 779. See also Powell v. Edmunds, 12 East, 6; Smith v. Jeffryes, 15 Mees. & W. 561; Gale v. Lewis, 9 Q. B. 730; Acey v. Fernie, 7 Mees. & W. 151. The case of Western Assur. Co. v. Doull, 12 Can. S. C. 446, was one where a policy of insurance against loss by fire contained the following condition: “In case of subsequent

notice thereof must also" be given in writing at once, and such subsequent assurance indorsed on the policy granted by this company, or otherwise acknowledged in writing; in default whereof such policy shall thenceforth cease and be of no effect.” The insured effected subsequent insurance and verbally notified the agent, but there was no indorsement made on the policy, nor any acknowledgment in writing by the company. A loss javing occurred, the damage was adjusted by the inspector of the company, and neither he nor the agent made any objection to the loss on the ground of noncompliance with the above condition. In a suit to recover the amount of the policy the company pleaded breach of the condition, in reply to which the plaintiff set up a waiver of the condition and contended that by the act of the agent and inspector the company was estopped from setting it up. It was held by the supreme court of Canada that the insured not having complied with the condition, the policy ceased and became of no effect on the subsequent insurance being cffected, and that neither the agent nor the inspector had power to waive a compliance with its terms. In discussing the question of the power of the agent to waive the condition, the court said: “It is not shown that it was within the scope of Greer's authority as a local agent to waive such a condition. The condition itself does not, either by express words or by implication, recognize such an authority, but the reason for requiring the notice obviously points to a directly contrary construction. Moreover, the English case already quoted [Gale v. Lewis, 9 Q. B. 730], which determines that the required notice is to be given to the company itself and not to the local agent, shows, a fortiori, that such an agent has, in the absence of express authority, no power to waive the condition. Direct authority is, however, not wanting. In the case of Shannon v. Gore Dist. Mut. F. Ins. Co. 2 Ont. App. Rep. 396, the facts were the same as in the present case, the subsequent assurance having been effected through the agent who also acted for the defendants in taking the original risk. It was contended that the successive insurances having been thus effected with the same person as the agent of the two companies, the company which granted the first policy had knowledge; of the "subsequent insurance, and were there-fore estopped from setting up a condition vitiating the policy for want of a written notice. But the court of appeal held otherwise, and determined that in such a case notice to the agent was not notice to the company, and that the agent neither had authority to waive the condition nor could by his conduct estop his principals, the first insurers. As regards any direct action of the appellants [insurance company] through their immediate agents, the directors or principal officers of the company conducting its affairs at the head office, there is no pretense for saying that there is in the present case the slightest evidence of conduct upon which

either a defense of waiver of the condition, or by way of estoppel against insisting upon it, can be based, and this for the very plain reason that these directors and officers never had the fact of a subsequent assurance .#. to their knowledge, and without proof of such knowledge neither waiver nor estoppel can be made out.” “The condition in the policy is one which must be complied with or waived. The company, by signing a condition of that kind, reserves to itself the right to withdraw the policy in case of further insurance. That question is one which cannot be decided by a mere local agent. He may receive the notice for transmission, but he cannot act on it; it must be brought to the notice of some person authorized by the company to continue the insurance after notice has been given them. It has been decided in a number of cases in England that a local agent has not such authority, and a mere notice to him, even in a case where he is *i. for another company taking the further risk, has been held to be no notice to the company.” Coming to the decisions of our state courts, we find that, while there is some contrariety of decisions, the decided weight of authority is to the effect that a policy of insurance in writing cannot be changed or altered by parol evidence of what was said rior or at the time the insurance was efected; that a condition contained in the policy cannot be waived by an agent, unless he has express authority so to do; and then only in the mode prescribed in the policy; and el that mere knowledge by the agent of an ex: isting policy of insurance will not affect the * company unless it is affimatively shown that such knowledge was communicated to the company. In Worcester Bank v. Hartford F. Ins. Co. 11 Cush. 265, 59 Am. Dec. 145, which was a case of additional insurance, and where one Smith testified that he was agent for the defendant company to issue policies, and was in the habit of receiving notices of additional insurance, which he indorsed on the policies, it was held by the supreme judicial court of Massachusetts that as it is provided in the policy on which this action is brought that if the assured or his assigns shall thereafter make any other insurance on the same #: and shall not with all reasonable iligence give notice thereof to this company, and have same indorsed on this instrument or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect, and as, after the making of this policy, the assured obtained other insurance on the same property, but did not have the same indorsed on the policy or otherwise acknowledged by the defendants in writing, the policy was void, notwithstanding there was parol evidence tending to show that notice had been given to Smith, the company's agent. The same court held, in Hale v. Mechanics' Mut. F. Ins. Co. 6 Gray, 169, 66 Am. Dec. 410, that a policy issued by a mutual fire insurance company, whose by-laws provided that any insurance subsequently obtained

without the consent in writing of their president should avoid the policy, and that the by-laws should in no case be altered except by a vote of two thirds of the stockholders or directors, was avoided by a subsequent insurance obtained with the mere verbal consent of the president. It was said by Bigelow, J., giving the unanimous opinion of the court: “Such being the rights of the parties under the contract, it is clear, upon the facts in this case, that the policy was annulled under the 15th article of the by-laws, by reason of the subsequent insurance procured by Stone and Perry on the property, without the assent of the president of the corporation in writing; unless the waiver of such written assent by the president, and his verbal consent to such subsequent insurance as found: by the jury, operate to set aside this pro-3 vision in the by-laws as to this particular" policy, and render the contract valid, notwithstanding by its express terms, as well as by the clause in the by-laws, it would be otherwise void. But the difficulty in maintaining the plaintiff's position on this part of the case is, not only that it attempts to substitute for the written agreement of the parties a verbal contract, but that there is an entire absence of any authority on the part of the president to make such waiver or give such verbal assent. He was an agent, with powers strictly limited and defined, and could not act so as to bind the defendants beyond the scope of his authority. Story, Agency, $$ 127, 133; Salem Bank v. Gloucester Bank, 17 Mass. 29, 9 Am. Dec. 111. By article 15 of the by-laws, his power to assent to subsequent insurance was expressly confined to giving such assent in writing. In order to guard against the danger of over insurance, the corporation might well require that any assent on their part to further insurance on property insured by them should be given by the deliberate and well-considered act of their president in writing, and not be left to the vagueness and uncertainty of P. proof. The whole extent and limit of the president's authority in this respect were set forth in the by-laws attached to the policy in the present case, and, as the evidence shows, were fully known to the assured. . . If the argument of the plaintiff should be carried out to its legitimate result, it would give to the president the right, in any case, to suspend or change the by-laws by his verbal act and at his pleasure. This he clearly had no power to do. We are therefore of opinion that the finding of the jury does not render the policy valid; but that it was annulled by the subsequent insurance obtained by the assured without the written assent of the president.” In Smith v. Niagara F. Ins. Co. 60 Wt. 682, 1 L. R. A. 216, 15 Atl. 353, the supreme court of Vermont, in an elaborate opinion; in Wilson v. Conway F. Ins. Co. 4 R. I. 141, the supreme court of Rhode Island, and in Cleaoer v. Traders' Ins. Co. 65 Mich. 527, 32 N. W. 660, and same case in 71 Mich. 414, 39 N. W. 571, the supreme court of Michigan,—

held, that the fact that the company's agent had authority, in a certain way or manner, to consent to the taking of additional insurance, does not aid the plaintiff ; that the agent did not consent, in the cases cited, within the line of his authority or “in the manner prescribed by the policy, wherein the agent is expressly prohibited from waiving or modifying the written contract. The same view of the law prevails in Connecticut. In Sheldon v. Hartford F. Ins. Co. 22 Conn. 235, 58 Am. Dec. 420, it was held that where the policy and survey constituted a contract between the parties, and there was no imperfection or ambiguity in the contract, evidence of parol representations made to the agent prior to the issuing of the policy could not be received to explain or qualify the contract. See also Glendale Woolen Mfg. Co. v. Protection Ins. Co. 21 Conn. 19, 37, 54 Am. Dec. 309; Hough v. City F. Ins. Co. 29 Conn. 10, 76 Am. Dec. 581. New York Ins. Co. v. Thomas, 3 Johns. Cas. 1, was an action upon a policy of insurance, and where parol evidence was of. fered to vary the terms of the instrument. o question was thus disposed of by Kent,

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“The next point is whether the parol proof be admissible to explain the contract, and, if it be, what is the effect, in the present case, of such proof. “I know no rule better established than that parol evidence shall not be admitted to disannul or substantially vary or extend a written agreement. The admission of such testimony would be mischievous and inconvenient. Parol evidence is to be received in the case of an ambiguitas latens, to ascertain the identity of a person or thing, but before the parol evidence is to be received in such case, the latent ambiguity must be made out and shown to the court. In the present instance there is no ambiguity. The language of the contract, throughout, is consistent and explicit. This general rule of law has been articularly and emphatically applied to polcies. Skinn. 54. And except in the special instance of explanations resulting from the usage of trade, they have never been allowed to be contradicted by parol agreements.” Jennings v. Chenango County Mut. Ins. Co. 2 Denio, 75, has long been a leading case. There it was held that conditions of insurance containing statements of the purpose for which the property insured is to be ocrecupied, and of its situation as to other build: ings, are warranties, and if untrue the policy * is void; though the variance be not material to the risk; and that parol evidence that the insured truly informed the agent of the insurer who prepared the application as to these particulars is not admissible. In the opinion, the language of Parker, Ch. J., in Higginson v. Dall, 13 Mass. 96, is quoted, that policies, though not under seal, “have nevertheless ever been deemed instruments of a solemn nature and subject to most of the rules of evidence which govern in the case of specialties. The policy itself is considered to be the contract between the parties, and whatever proposals are made or conver

sations had between the parties prior to the subscription, they are to be considered as waived if not inserted in the policy, or contained in a memorandum annexed to it.” In Fowler v. Metropolitan L. Ins. Co. 116 N. Y. 389, 5 L. R. A. 805, 22 N. E. 567, it was said: “A long line of authorities has settled the law, to be that when it is expressly provided that the premium on a life insurance policy shall be paid on or before a certain day, and in default thereof the policy shall be void, that the nonpayment oft”. premium upon the day named works a forfeiture. The claim that such provision, in a paid-u policy, is o: and oppressive, an presents a case in which a court of equity should relieve from the forfeiture incurred by omission to make prompt payment of premiums, is not a new one. It has frequently been presented to the courts and has recently received very full consideration in this court in Atty. Gen. v. North America L. Ins. Co. 82 N. Y. 172, and in People v. Knickerbocker L. 1ns. Co. 103 N. Y. 480, 485, 9 N. E. 35. It was decided in those cases that provisions in paid-up poicies issued in lieu of other policies on which notes had been given for premiums, that they should be void in case the interest, on such notes was not paid, is not unconscionable, oppressive, or usurious. In the first case cited, Judge Éari said: "There are doubtless some decided cases which hold that such forfeiture should not be enforced, but I think the better rule is to uphold and enforce such contracts when free from fraud or mistake, just as the parties have made them.’ And in Douglas v. Knickerbocker L. Ins. Co. 83 N. Y. 492, it was said: ‘It has generally been found most conducive to the se general welfare to leave parties to make: their own contracts," and then enforce them * as made, unless, on the ground of fraud, accident, or mistake, ignorance, impossibility, or necessity, relief can be granted against them.' . . It would be impossible to sustain the claim that the statements and representations contained in the pamphlet issued by the company were to be regarded as affecting or modifying the strict terms of the policy without disregarding the established rule of law that a written contract merges all prior and contemporaneous negotiations in reference to the same subject, and that the whole engagement of the parties and the extent and manner of their undertaking is embraced in the writing. This rule is the same in equity as at common law, and although a written eement may be set aside or reformed, fraud or mistake must be shown to entitle a party to such relief. And it is never competent in an action upon a written contract to show that it was executed on the faith of a preceding parol stipulation not embraced in it.” In Baumgartel v. Providence Washington Ins. Co. 136 N. Y. 547, 32 N. E. 990, where defendant had issued to plaintiff a policy of fire insurance which contained a clause to the effect that, unless otherwise provided agreement indorsed thereon, it should be void in case of other insurance on the property in

sured; and it also provided that no agent of the company ...if have power to waive any provision or condition of the policy except such as by its terms might be the subject of agreement indorsed thereon or added thereto, and, as to those, that he should have no such power nor be deemed to have waived them unless in writing so indorsed or attached; and where, in an action upon the policy, it appeared that, during its life, the plaintiff, without notice to the defendant and without its knowledge or consent, obtained other insurance upon the property, and that thereafter he informed the agent, who had issued the policy, of this fact, and that the agent had replied, “All right; I will attend to it;” but it did not appear that the plaintiss then had the policy in suit with him, or afterwards applied to said agent for written consent to the other insurance; it was held that knowledge of the agent of the subseto quent insurance did not satisfy the condition § of the policy, and that plaintiff having failed F to comply “therewith, the policy was forfeited and void; and also held that the statements of defendant's agent did not amount to a waiver of the conditions or authorize the application of the doctrine of estoppel. It was said in the opinion: “The stipulation with respect to further insurance is one of the conditions upon which, by the agreement of the parties, the liability of the defendant depended in case of a loss during the term of the insurance. The parties have also agreed upon the mode in which the condition could be complied with or waived, namely, by writing indorsed upon the policy in the form of a consent to the other insurance. The agent had power to give this consent only in the manner prescribed by the contract. But there is not in the case any proof, even of verbal consent by the agent that the plaintiff might procure further and additional insurance. . . . The effect of such stipulations in a contract of insurance, as well as the manner in which they may be modified or waived by agents of the company, have been so thoroughly discussed and so clearly pointed out that a reference to some of the more recent cases on the subject is all that is needful here. Allen v. German American Ins. Co. 123 N. Y. 6, 25 N. E. 300; Quinlan v. Providence Washington Ins. Co. 133 N. Y. 356, 31 N. E. 31; Messelback v. Norman, 122 N. Y. 583, 26 N. E. 34; Walsh v. Hartford F. Ins. Co. 73 N. Y. xx

It is doubtless true that in several later cases the New York court of appeals seems to have departed from the principles of the previous cases, and to have held that the restrictions inserted in the contract upon the power of an agent to waive any condition, unless done in a particular manner, cannot be deemed to apply to those conditions which relate to the inception of the contract when it appears that the agent has delivered it and received the premiums with full knowledge of the actual situation. To take the benefit of a contract with full knowledge of all the facts, and attempt afterwards to defeat, it, when called upon to perform, by asserting

conditions relating to those facts, would be to claim that no contract was made, and thus operate as a fraud upon the other party. Robbins v. Springfield F. & M. Ins. Co. 149 N. Y. 484, 44 N. E. 159; Wood v. American go F. Ins. Co. 149 N. Y. 385, 44 N. E. 80. But: see Rohrback v. Germania F. Ins. Co. 62°N." Y. 63, 20 Am. Rep. 451, and Owens v. Holland Purchase Ins. Co. 56 N. Y. 565-570, which are irreconcilable. The fallacy of this view is disclosed in the phrases we have italicized. It was thereby assumed that the agent had full knowledge of all the facts, that such knowledge must be deemed to have been disclosed by the agent to his principal, and, that, consequently, it would operate as a fraud upon the assured to plead a breach of the conditions. This mode of reasoning overlooks both the general principle that a written contract cannot be varied or defeated by parol evidence, and the express provision that no waiver shall be made by the agent except in writing indorsed on the policy. As we shall hereafter show when we come to consider the meaning and legal purport of the contract in suit, such express provision was intended to protect both parties from the dangers involved in disregarding the rule of evidence. The mischief is the same whether the condition turned upon facts existing at and before the time when the contract was made, or upon facts subsequenty taking place. In Franklin F. Ins. Co. v. Martin, 40 N. J. L. 568, 29 Am. Rep. 271, the facts were as follows: A policy described the property insured as “occupied as a dwelling and boarding house;” in fact, it was occupied as a country tavern, and there was kept for use a billiard table in a room back of the bar room. The property continued to be so used until the fire occurred. In the conditions of insurance, taverns were classified as extra hazardous, and billiard rooms were named as specially hazardous, each being subject to higher premiums than ordinarily hazardous rights. It was held by the New Jersey court of errors and appeals that evidence that the application for insurance was prepared by the agent of the insurer, and that he knew, at the time of the application, that the property was occupied as a tavern, and that a billiard table was kept in it for use, could not be received for the purpose of showing that, under the description of a dwelling an boarding house, the parties intended to insure the premises as they were then, in fact, being used; that a written contract of insurance cannot be altered or varied by parol evidence of what occurred between the in- sured and the agent of the insurer at the #: time of effecting the insurance; "and that * such evidence will not be received to raise an estoppel in pais, which shall conclude the insurer from setting up the defense that the policy was forfeited by a breach of the conditions of insurance. In the opinion of the court, given by Judge Depue, there was a full examination of cases on the subject of the admissibility of parol evidence in actions on policies of insurance, and some of his observations are so weighty,

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