As Affected by Acts or Knowledge of Agent.

of the insured, the act of such solicitor in making out an incorrect diagram without the knowledge of the insured will not vitiate the policy. *Sprott v. New Orleans Ins. Co., 13 S. W. Rep. 799; 53 Ark. 215.

557; 18 Pac. Rep. 291; Pickels v. Phoenix solicitor of the company acts as the agent Ins. Co., 119 Ind. 291; 21 N. East. Rep. 898; Phonix Ins. Co. v. Copeland, 86 Ala. 551; 6 So. Rep. 143; Western Assur. Co. v. Rector, 85 Ky. 294; 3 S. W. Rep. 415; Planters' Ins. Co. v. Sorrels, 1 Baxt. 352 (Tenn.); McBride v. Republic Fire Ins. Co., 30 Wis. 562; Cheek v. Columbia Ins. 351.- Where a policy-writing agent, Co., 4 Ins. L. J. 99 (Tenn.); Parker v. with knowledge of the facts subsequently Amazon Ins. Co., 34 Wis. 364; Chatillon | relied on to defeat a recovery, prepares v. Canadian Mut. Fire Ins. Co., 27 Up. Can. C. P. 450; Ins. Co. v. Lewis, 48 Tex. 622; Texas Ins. Co. v. Stone, 49 Tex. 4.

an application satisfactory to himself, and acts on his own knowledge in taking the risk, the insured can recover in the 347.- Where an insurance agent, act-absence of collusion or fraud. *Richards ing within the general scope of his busi- v. Washington F. & M. Ins. Co., 60 Mich. ness, has examined an applicant upon 420; 27 N. W. Rep. 586; Germania F. Ins. questions contained in the blank applica- Co. v. Hick, 23 Ill. App. 381; aff'd, 15 tion, and received true answers thereto, West. Rep. 158; 125 Ill. 361; 17 N. East. but omits certain answers, and the appli- Rep. 792. cant signs the application under the agent's direction, the policy is not rendered null and void by such omissions, although it contains a provision that any false representation or omission in the material facts from the application shall render it void. Kansas Protective Union v. Gardiner, 41 Kans. 397; 21 Pac. Rep. 233.

348.- An insured who, upon obtaining actual or constructive notice of fraud of the agent in inserting untrue statements in the application, does not at once inform the company and have them corrected or rescinded, constructively becomes a participant in the original fraud of the agent, and forfeits his rights under the policy. *Johnson v. Dakota F. & M. Ins. Co., 45 N. W. Rep. 799; 1 N. D. 167. 349.- Where an applicant for insurance, in answer to a question as to whether all stove pipes passed into good brick chimneys, replies that one does not, but that he will build a chimney in the spring, and the agent pronounces the stove pipes and chimneys safe, and recommends the risk, upon which a policy is issued, the failure of the assured to build a chimney will not relieve the company from liability. *Waterbury v. Dakota F. & M. Ins. Co., 43 N. W. Rep. 697; 6 Dak. 468.

352.- An insurance company cannot repudiate the fraud of its agent in inserting untrue answers in the application, and thus escape the obligations of its contract, merely because the assured accepted in good faith the act of the agent, without examination. *Kister v. Lebanon Mut. Ins. Co., 5 L. R. A. 646; 128 Pa. 553; 47 Phila. Leg. Int. 375; 24 W. N. C. 442; 18 Atl. Rep. 447; *Rogers v. Phœnix Ins. Co., 121 Ind. 570; 19 Ins. L. J. 492; 23 N. East. Rep. 498; *Phœnix Ins. Co. v. Golden, 121 Ind. 524; 19 Ins. L. J. 560; 23 N. East. Rep. 503.

353.- An agreement by an insurance agent to note on the application the fact of an encumbrance on the property, upon which agreement the applicant relied, estops the company from setting up the encumbrance to defeat a recovery on the policy. *Copeland v. Dwelling House Ins. Co., 77 Mich. 554; 43 N. W. Rep. 991.

354.- An applicant for insurance, who gives correct answers to a general agent respecting encumbrances, is not prejudiced by the agent's failure to mention them in the written application which the applicant signs, although the policy stipulates that the application shall be considered a part of the policy and a warranty of the statements therein contained. *German Ins. Co. v. Gray, 8 L. R. A. 70; 23 Pac. Rep. 637; 43 Kan. 497.

350.- Although an insurance policy contains a warranty by the insured that 355. An error or fraud on the part the diagram is correct, and the applica- of an insurance agent who makes out an tion recites that in writing out answers application, in inserting erroneous or unto questions and preparing a diagram the truthful statements, is chargeable to the

As Affected by Acts or Knowledge of Agent.

ten in his name, notwithstanding another person was interested in a portion of it, operates as a waiver of any forfeiture on ground of ownership in the property. *German Ins. Co. v. Miller, 39 Ill. App. 633.

insurer and will not defeat the policy. application, that insurance could be writ*Johnson v. Dakota F. & M. Ins. Co., 45 N. W. Rep. 799; 1 N. D. 167; *Phœnix Ins. Co. v. Stark, 120 Ind. 444; 19 Ins. L. J. 208; 22 N. East. Rep. 413; *Rockford Ins. Co. v. Seyferth, 29 Ill. App. 513; *Roberts v. State Ins. Co., 26 Mo. App. 92; *State Ins. Co. v. Taylor, 19 Ins. L. J. 966; 24 Pac. Rep. 333; 14 Col. 499; *Crouse v. Hartford F. Ins.. Co., 19 Ins. L. J. 343; 44 N. W. Rep. 496 (Mich.)

356.- Where an assured has in his pos.session the policy as well as a copy of the application indorsed on the back thereof, in case of a fraud practiced by the agent upon both the insured and the insurer, which could have been readily detected by the former if he had read the copy of the application, he will be estopped from denying knowledge of the fraud. *Johnson v. Dakota F. & M. Ins. Co., supra. No. 355.

357. There is no distinction between mutual and stock companies as to responsibility for acts of agents in taking applications for insurance. *Russell v. Detroit Mut. F. Ins. Co., 45 N. W. Rep. 356; 80 Mich. 407.

362.- Answers written in an application by company's agent without the assent of the applicant do not bind latter; and so if the agent misstates facts, with knowledge as to what they actually are. Id.

363.- Insurance agents who, upon being applied to by other agents for a policy, apply to the general agent of a company not represented by them, forwarding to him a written application signed by them in the firm name, containing untrue representations which by the terms of the policy are made warranties, are not the agents of the insured in procuring such policy and making the untrue representations. *South Bend Toy Mfg. Co. v. Dakota F. & M. Ins. Co., 48 N. W. Rep. 310; 20 Ins. L. J. 871 (S. D.); aff'd on rehearing, 52 N. W. Rep. 866.

364. An insurance company after 358. If an insurance agent, with total loss cannot claim that the policy is knowledge of a mortgage on premises, void because of statements in the appliwrites an answer in an application, stat-cation, when it was filled up by its local ing that they are unincumbered, without agent with full knowledge of all the facts, asking the applicant any questions or and signed by the insured in reliance bringing the matter to his attention, the upon representations of the agent. *Phœcompany is bound by the answer, al-nix Ins. Co. v. Weeks, 20 Ins. L. J. 541; though the applicant signs the applica-26 Pac. Rep. 410; 45 Kan. 751. tion. Id.

359.- Where an agent fills out an application for an applicant and states the title to be in fee simple, believing that the possession of a warranty deed amounts to such title, and it is shown that the title was not in fee, it cannot be claimed that fraud was practiced on the company. *Phoenix Ins. Co. v. Stocks, 40 Ill. App.

64.

365.- An insurance company is estopped by answers falsely or improperly written by its agent or solicitor to questions contained in the application, without the knowledge of the applicant, where he made true answers to such questions, even though the application was signed by the applicant without knowing its contents. *State Ins. Co. v. Gray, 44 Kan. 731; 20 Ins. L. J. 128;

360. An insurance agent's knowl-25 Pac. Rep. 197. edge of the falsity of representations 366.— Although it is provided in a made as warranties in an application policy of insurance that the statements in which he helps to prepare will not pre- an application are warranties, and if any vent them from avoiding the policy. of them are false the policy shall be void, *Sullivan v. Metropolitan Ins. Co., 36 N. it is not forfeited if the company's own Y. S. Rep. 38; 12 N. Y. Supp. 923; rehear-agent makes all the false statements coning denied, 14 N. Y. Supp. 954. tained in the application, and there was

361.- Verbal statement and assurance no fraud or attempt to deceive on the by company's agent at time of receiving part of the assured. Id.; *McComb v.

Waiver.

Council Bluffs Ins. Co., 48 N. W. Rep. warranties in the application are untrue, 1,038 (Iowa).

Waiver.

breach of warranty in respect to requiring notification of time and place of boat being laid up. Devens v. Mechanics' & Traders' Ins. Co., 83 N. Y. 168.

right of possession to the premises. Held, Held, not to constitute a waiver of a that there was no such misrepresentation of the title as would avoid the policy; and, 2d, that the issuing of the policy upon such application, without the amount of the encumbrances being stated, was a waiver of such an objection; and as the assured were in possession under a first mortgage, which gave them an unencumbered interest several times greater than the amount of insurance, the amount of the mortgages was not material. Nichols v. Fayette Mut. Fire Ins. Co., 1 Allen, 63 (Mass.)

377. A condition required the application to state the situation of the buildings with respect to contiguous buildings, their construction and materials, and how these were occupied. The application did not state occupancy. Held, that by issuing a policy on the application the company show they regarded it as sufficient. Peoria Mar. and F. Ins. Co. v. Perkins, 16 Mich. 380.

378. When a question in a written application is unanswered, and the risk is accepted upon such application, it is a waiver of any notice which the truthful answer to the interrogatory would have disclosed. Dayton Ins. Co. v. Kelley, 24 Ohio St. 345.

383.- Company does not waive defense of breach of warranty by stating when it receives proofs that they consider they owe nothing as fire was caused by carelessness. The omission to put its disclaimer upon ground of breach of warranty in answer to an inquiry as to amount due is not a waiver of such defense. Id.

384. The issuing of a policy when a portion of the questions in the application remain unanswered is a waiver of answer to such questions. Armenia Ins. Co. v. Paul, 91 Pa. 520; Jersey City Ins. Co. v. Carson, 44 N. J. L. 210; Lorillard Ins. Co. v. McCulloch, 21 Ohio St. 176; Hall v. People's Ins. Co., 6 Gray, 185 (Mass.); Mulville v. Adams, 13 Ins. L. J. 435; 19 Fed. Rep. 887.

385.- Issue of policy with knowledge of a breach of warranty is a waiver of the forfeiture. Stone v. Hawkeye Ins. Co., 15 Ins. L. J. 490; 68 Iowa, 737; and see cases supra Agent, No. 255 et seq.

386. A condition in an insurance policy that the policy shall be null and void 379.- If company acts upon an appli- if any of the statements or representations cation with any question therein unan- in the application are untrue, does not swered it waives information in respect avoid the policy absolutely, but only at thereto, and assured cannot be charged the election of the insurer. *Schreiber v. with concealment. Sinclair v. Canadian German-American Hail Ins. Co., 45 N. Mutual Ins. Co., 40 Up. Can. Q. B. 206. W. Rep. 708; 19 Ins. L. J. 730; 43 Minn. 380. In making inquiries as to par-367; *St. Paul F. & M. Ins. Co. v. Neidticular facts, company waives informa- ecken, 19 Ins. L. J. 369; 43 N. W. Rep. 696; tion in regard to others. Browning v. 6 Dak. 494. Home Ins. Co., 71 N. Y. 508.

381.- Company having issued its policy upon a written application containing a blank inquiry as to value unanswered, cannot afterwards avail itself of an oral statement as to value made at the same time, and claim it to be fraudulent. Bardwell v. Conway Ins. Co., 122 Mass. 90.

382.- Policy provided that the acts of the insurers in saving and preserving the property insured should not be considered as affirming or denying any liability under the policy. Company after a fire directed master of boat insured to store the anchors and other articles saved.

387.— The insured, if he acts in good faith, is not bound to disclose any facts not called for by any inquiry embraced in the blank application. *Smith v. Home Ins. Co., 47 Hun, 30; 14 N. Y. S. Rep. 106.

Evidence and Procedure in Court.

of form. *German Ins. Co. v. Gibson, 14 S. W. Rep. 672; 53 Ark. 494; 20 Ins. L. J. 248.

389.- Conditions contained in insurance policies, regarding representations and warranties contained in the application, are intended solely for the benefit of the insurer, and may be disregarded or waived. *St. Paul F. & M. Ins. Co. v. Neidecken, 19 Ins. L. J. 369; 43 N. W. Rep. 696; 6 Dak. 494; *Brumfield v. Union Ins. Co., 87 Ky. 122; 7 S. W. Rep. 893; *Germania F. Ins. Co. v. Klewer, 129 Ill. 599; 19 Ins. L. J. 126; 22 N. East. Rep. 489; rev'g, 27 Ill. App. 590.

390.— That an insurer calls upon the insured to furnish preliminary proofs of loss as required by the policy does not waive its right to avoid the policy for misstatements in the application. Niagara F. Ins. Co. v. Miller, 13 Cent. Rep. 60; 120 Pa. 504; 6 Am. St. Rep. 726; 14 Atl. Rep. 385.

391.- Where the insurer has knowledge of every fact upon which to avoid the policy, and misleads the insured for nearly a year, not informing him that it would not pay because the policy was avoided, it is estopped from setting up avoidance of the policy as a defense to an action thereon. Id.

394. The defendants introduced witnesses to show that the plaintiff, in violation of a stipulation in his policy, had deposited ashes in wooden casks after the date of the policy. The plaintiff introduced witnesses to contradict this testimony, who, to a cross-interrogatory by defendants, as to whether ashes had not been thus deposited prior to the date of the policy answered in the negative; and thereupon defendants offered testimony to show that ashes had been thus deposited prior to the date of the policy. Held, that this evidence, at this stage of the proceedings, could be properly offered only to contradict or impeach the witnesses called by plaintiff and was incompetent for this purpose, as the answers drawn out by the crossexamination did not relate to matters material to the case. Underhill v. Agawam Mut. Fire Ins. Co., 6 Cush. 440 (Mass.)

395.- Parol evidence is not admissible to vary or explain the terms of a policy and survey, where the latter has been made part of the contract, and there is no ambiguity in either. Glendale Woolen Manufacturing Co. v. Protection Ins. Co., 21 Conn. 19; Sheldon v. Hartford Fire Ins. Co., 22 Id. 235.

392. Evidence and procedure in 396.- Evidence that the agent of the court. Where the application was re- insurers drew up the application, and ferred to and made part of the policy, knew of the existence of buildings, and the assured introduced evidence to omitted to be mentioned in such applicaprove that he truly informed the agent of tion, as standing within ten rods of the insurer, who prepared the applica- property to be insured, is inadmissible. tion, as to certain particulars not stated Kennedy v. St. Lawrence County Mut. therein; held, that such evidence was Ins. Co., 10 Barb. 285 (N. Y.) But see inadmissible. Jennings v. Chenango later cases, supra Agent, No. 255 et seq. County Mut. Ins. Co., 2 Denio, 75 (N. 397. The burden of proving a comY.) But see later cases, supra Agent, No.pliance with a promissory warranty is 255 et seq. upon the assured, and the burden of 393. The original insured made rep-proving a breach thereof is not upon the resentations, in regard to lamps in pick-insurers. Wilson v. Hampden Ins. Co., 4 ing room, in 1834. The policy was re- R. I. 159. newed in favor of various parties up 398. to 1846, when loss occurred; the last tions of facts, made to an agent only policy reciting that the insurance was made on representations of assured contained in his application. Parol evidence held admissible, to show that the original application by the first assured was the document referred to. Clark v. Manufacturers' Ins. Co., 2 Wood. & Minot, 472 (U. S. Cir.); 8 How. 235 (U. S.)

Evidence of verbal communica

authorized to receive and forward applications, is inadmissible to vary the terms of the written application. Wilson v. Conway Fire Ins. Co., 4 R. I. 141.

399.- Parol evidence of a conversation between the parties at the time the policy was made, as to the night watch to be kept upon the premises, and that, by the