Div. 52, 55, 74 N. Y. Supp. 1062. And see La Chicotte v. Richmond R. Co., 15 App. Div. 380, 44 N. Y. Supp. 75; Fox v. Davidson, 36 App. Div. 159, 55 N. Y. Supp. 524; Smith v. Wetmore, 167 N. Y. 234, 237; Texas Banking Co. v. Hutchins, 53 Tex. 61; Eiseman v. Hawkeye Ins. Co., 74 Iowa, 11; DwellingHouse Ins. Co. v. Johnson, 47 Kans. 1. There is an expression to contrary in McManus v. Western Assur. Co., 43 App. Div. 550, affd., 167 N. Y. 602, without opinion. Allen v. Dutchess Co. Ins. Co., 95 App. Div. 86, 88 N. Y. Supp. 530, sustains the rule, but upon the specific question there decided it is doubtful whether it properly distinguishes between the two classes of conditions. See Rule 61.

Insured may plead both performance and waiver and rely upon that which his evidence establishes. Warsharvky v. Anchor Ins. Co., 98 Iowa, 221, 67 N. W. Rep. 237. That proof of waiver may be admitted under an allegation of performance, see Nickell v. Phoenix Ins. Co., 144 Mo. 420, 46 S. W. Rep. 435, 27 Ins. L. J. 880; Murphy v. North B. & M. Ins. Co., 70 Mo. App. 78; McCollum v. Niagara Ins. Co., 61 Mo. App. 352; Stephens v. Union Ins. Soc., 16 Utah, 27, 50 Pac. Rep. 626, 27 Ins. L. J. 165.

2. Hooker v. Phoenix Ins. Co., 69 Mo. App. 141.

3. Clemens v. American Ins. Co., 70 App. Div. 435, 75 N. Y. Supp. 484; Guarino v. Fireman's Ins. Co., 44 Misc. 218, 88 N. Y. Supp. 1044.

RULE 61.

Pleading and Evidence of Waiver or Estoppel as to an Affirmative Defense.

When the insurance company sets up an affirmative defense and the insured depends upon waiver or estoppel, and a code of procedure or modern practice act creates an issue on the defendant's answer, the

insured may give evidence of such waiver or estoppel in rebuttal or reply to the defendant's evidence without pleading it;1 evidence claimed to operate as an estoppel is no part of plaintiff's proof or case originally, and if offered as such it is proper to exclude it;2 nor is it proper for the defendant, upon cross-examination of plaintiff's witnesses, to question them with intent to establish its defense;3 even if such evidence is admitted defendant is not entitled to a nonsuit thereon, because the plaintiff would be deprived of right to show waiver or estoppel on part of the defendant.*

1. Arthur v. Homestead Ins. Co., 78 N. Y. 462; McGuire v. Hartford Ins. Co., 7 App. Div. 575, 40 N. Y. Supp. 300, affd. without opinion, 158 N. Y. 680; Andes Ins. Co. v. Fish, 71 Ill. 620. And see Smith v. Commonwealth Ins. Co., 49 Wis. 322; Gans v. St. Paul Ins. Co., 43 Wis. 108; Levy v. Peabody Ins. Co., 10 W. Va. 560; West Rockingham Ins. Co. v. Sheets, 26 Gratt. (Va.) 854; Lycoming Ins. Co. v. Schollenberger, 44 Pa. St. 259; Wilson v. Hawkeye Ins. Co., 70 Iowa, 91; Crittenden v. Springfield Ins. Co., 85 Iowa, 652, 52 N. W. Rep. 548; Couch v. City Ins. Co., 37 Conn. 248; West v. Norwich Union Ins. Co., 10 Utah, 442, 37 Pac. Rep. 685. Where the issue is not created by answer, the waiver must be pleaded in reply. Kahler v. Iowa State Ins. Co., 106 Iowa, 380, 76 N. W. Rep. 734; McCoy v. Iowa State Ins. Co., 107 Iowa, 80, 77 N. W. Rep. 529, 28 Ins. L. J. 162; Burlington Ins. Co. v. Campbell, 42 Nebr. 208, 60 N. W. Rep. 599; Etna Ins. Co. v. Holcomb, 89 La. 404, 34 S. W. Rep. 915, 25 Ins. L. J. 833; Bruce v. Phoenix Ins. Co., 24 Oreg. 486, 34 Pac. Rep. 16. This and preceding rule are governed by local rules of practice to which reference must be had.

2. Barnett v. Farmers' Ins. Co., 115 Mich. 247, 73 N. W. Rep. 372.

3. McGuire v. Hartford Ins. Co., 7 App. Div. 575, 40 N. Y. Supp. 30, affd. without opinion, 158 N. Y. 680.

4. Copeland v. Western Assur. Co., 43 S. C. 26, 20 S. E. Rep. 754.

CHAPTER ELEVENTH.

Construction and Interpretation of the Fire Insurance Contract.

RULE 1. State legislature cannot constitutionally delegate its power to prescribe a standard form of insurance policy Construction of a standard form.

2. Standard form construed as a contract -
a question of waiver but not estoppel.

May affect

3. Presumption as to use of words and phrases in standard form Doubtful questions.

4. Effect of standard form of one State being prescribed by another.

5. Insured bound by terms of accepted policy - Cannot plead ignorance - Estoppel.

6. Construction of policy when terms clear and unambiguous Parol evidence.

7. Policy should be construed same as any other instru

ment.

8. Technical meaning of words in trade or business.
9. All parts must be considered and harmonized, if pos-
sible No provision disregarded simply because in-
consistent.

10. Plain language not affected by interpretation of tariff
association.

11. Distinction in construction of two classes of conditions in policy.

12. Limitation on preceding rule — Insured not relieved of obligation of performance.

13. Construction cannot make new or different contract

Parol evidence.

14. Meaning of word "void."

15. Insured responsible for his own acts only, unless plain and explicit language otherwise.

16. When positive agreement certain thing shall not be done, insured responsible for act of one to whom commits control of premises.

17. When language ambiguous, construction favors insured - This rule not affected by standard form.

RULE 18. If policy requires construction courts will sustain the contract in preference to making it forfeit.

19. Courts will follow construction of the parties.

20. Conflict between written or descriptive part and
printed conditions.

21. Admission of parol evidence to explain ambiguity.
22. When language plain, and clear evidence of usage or
custom not admissible.

23. When evidence of usage or custom admissible

binding.

When

24. When usage or custom presumed to enter into intention.

25. Evidence of usage or custom.

26. Effect of the word "entire" on divisibility of contract. 27. Divisibility of contract not affected by entirety of premium.

28. Distinction between matters of interpretation and remedy as to what law governs.

29. Same subject-Rights and remedies - General rule. 30. Contract made when mailed.

31. Making of contract may be conditional

Intention.

32. When policy required to be countersigned.

33. Action on policy in another State than where issued, and property situate.

34. When policy void by express terms of a statute.

35. No defense to action on policy that company has not complied with statutory requirements of State where suit brought.

36. Rights of parties fixed on forfeiture-Not affected by subsequent statute.

RULE 1.

State Legislature Cannot Constitutionally Delegate its Power to Prescribe a Standard Form of Insurance Policy — Construction of a Standard Form.

A State legislature cannot constitutionally or lawfully delegate its power to prescribe a standard form of fire insurance contract to an insurance commissioner or other party, and a policy thus prescribed or used derives no additional force as a contract in construction on account of such a statute;1 but when the