Return of Premium-Waiver.

49.- A payment of the premium, according to the established course of dealing, though after the delivery of the policy or a certificate of renewal, and even after a fire, will not render the policy void under the clause providing that if the assured "shall have neglected to pay the premium then and in every such case this policy shall be void." Lebanon, etc., Ins. Co. v. Hoover, 113 Pa. 591.

50.- By accepting a premium after a loss the company waives its right to declare the policy forfeited for nonpayment of premium though it was paid to satisfy execution on a judgment on the premium note. *Phoenix Ins. Co. v. Tomlinson, 125 Ind. 84.

57.- If policy void from beginning on account of having been issued to a mortgagee as the absolute owner, the premium paid therefor may be recovered back. Waller v. Northwestern Assurance Co., 13 Ins. L. J. 789; 64 Iowa 101; and see 10 Fed. Rep. 232.

58.- If for any cause other than the assured's intentional fraud, the risk never attached under a fire policy, the insurer must return the premium received. *Jones & Abbott v. Insurance Co., 90 Tenn. 604.

59. In the absence of fraud, no risk attaches and no premium is earned on a fire policy containing a warranty that a continuous clear space of a given number of feet shall be maintained between the lumber insured and a sawmill, where such warranty was untrue when made and when the property was burned by fire communicated from a sawmill within the space provided for; and the insured may recover the premiums paid by him on the policy. Where risk*James v. Insurance Co. of N. A., 21 Ins. L. J. 377; 18 S. W. Rep. 260; 90 Tenn. 604.

51. The acceptance of a balance of the premium, though after a loss, is evidence as against the agent receiving it that the policy then became, if not before, the property of the insured. *Robinson v. Peterson, 40 Ill. App. 132.

60. Where an agent obtained a premium note from assured on the agreement that assured, on receipt of the policy by mail, might reject it, and in such case the note should be returned. Held, that the

52. Return of premium. never attached, the premium must be returned, if there was no fraud. In this case an action was brought on the policy, with counts for money had and received. There had been renewals, running back many years. The policy was held void, for non-compliance with warranty in origi- | note and agreement formed one contract, nal application, to which all the renewed policies referred. Plaintiff held entitled to all renewals paid by him, within the statute of limitations. Clark v. Manufacturers' Ins. Co., 2 Wood. & Minot 472 (U. S. Cir.)

53.- If a policy is obtained by fraudulent misrepresentations, and never attached for that reason, no premium is returnable. Friesmuth v. Agawam Mut. Ins. Co., 10 Cush. 587 (Mass.)

54. The policy never has attached on account of misrepresentation in the application, therefore the plaintiff may recover back his premium. Mulvey v. Gore District Mut. Fire Ass. Co., 25 Up. Can., Q. B. 424.

55.- Assured is only entitled to a return of the premium when the risk never attached. Hawke v. Niagara District Ins. Co., 23 Grant Ch. 139 (Can.).

56. In an action on a policy of fire insurance the defendant is entitled to a credit for unpaid premium. Home Ins. Co. v. Adler, 71 Ala. 516.

and that upon rejection of the policy, the company could not treat the agent's agreement as made without authority, and sue on the note. Jacoway v. Insurance Co., 49 Ark. 320.

61. Waiver. Policy provided that "no insurance should be considered binding until the actual payment of the premium.” Assured proposed drawing a check upon delivery of the policy, but agent of insurer requested him to let it lie, and that he (agent) would call for it when he wanted it. The premium was not paid until after the loss. Held, that the agent of the insurer had waived the actual payment of premium, and that he had authority to do so. New York Central Ins. Co. v. National Protection Ins. Co., 20 Barb. 468 (N. Y.). Reversed on another point, 14 N. Y. 85.

62.- Where policy stipulated that "no insurance should be binding until actual payment of the premium,” and the agent told the assured to let the premium alone and he would call for it when ready to make his report to the company, and in

Waiver.

the mean time the property was destroyed paid, as well as any other condition in the by fire, and the premium paid to the agent contract intended for its benefit; and if after the fire; held, that there had been the insured is allowed to act upon the cona waiver of the condition requiring pay-fidence of such waiver, the company is ment of premium, and the insurers were estopped to deny the fulfillment of the liable. Goit v. National Protection Ins. condition. Heaton v. Manhattan Fire Co., 25 Barb. 189 (N. Y.). Ins. Co., 7 R. I. 502.

63.- If the premium is tendered to the agent when application for insurance is made, and he does not receive it, but says he will consider it as paid, and authorizes the applicant to keep the money until the policy arrives, the contract will be as binding upon the company as if the money was actually paid over to the agent. Hallock v. Commercial Ins. Co., 2 Dutch. 268 (N. J.)

64.- An insurance company, through its president, agreed with the treasurer of the First Baptist Church in Brooklyn, to continue renewing its policy and calling for the premium when desired, until one party or the other should give notice of a desire to cancel such agreement. In pursuance of such arrangement the renewals were regularly made out for several years, and, within from thirty to sixty or ninety days afterwards, the president would take the renewal receipt to the treasurer and collect the premium. On the 21st of July, 1847, the last renewal had been taken to the treasurer, and in September, 1848, following, the property was destroyed, but the renewal receipt had not then been delivered to the treasurer, nor had the premium been paid. The policy stipulated that "no insurance should be considered valid or binding, until the actual payment of the premium." Held, that there had been a waiver of payment of premium on the part of the company by the parol agreement between president and assured; and the company were liable for the loss. Baptist Church of Brooklyn v. Brooklyn Fire Ins. Co., 18 Barb. 69; 19 N. Y. 305.

65.— An agreement to give credit for the premium, renders the policy binding without actual payment. Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 153; and see Goit v. National Protection Ins. Co., 25 Barb. 189 (N. Y.); Pine v. Merchants' Ins. Co., 19 La. An. 214.

66.- An insurance company may waive a condition in its usual form of policy, that in order that the policy should be binding the premium must be actually

67. The general agent of a company sent a policy by mail to an applicant for insurance with a statement that the premium charged was higher than usual, and saying, "Should you decline the policy, please return; if you retain it please send me the premium." Held, a waiver of a condition in the policy requiring prepayment of the premium. Sheldon v. Atlantic Fire & Marine Ins. Co., 26 N. Y. 460.

68. A condition in a policy of insurance that the instrument shall not be binding until actual payment of the premium, may be waived by a general agent of the company, by delivering the policy without exacting prepayment. Wood v. Poughkeepsie Mut. Ins. Co., 32 N. Y. 619.

69.- Although in the printed terms of a policy it is stated that no policy will be considered binding until the premium is paid, yet a general agent of the company may waive such conditions and give a short credit. Boehan v. Williamsburg City Ins. Co., 35 N. Y. 131.

70.- The delivery of a policy by a general agent of the company without requiring payment of the premium raises a presumption that a short credit is intended to be given, and the policy will be binding. Id.

71.- A condition making payment of the premium essential to validity of policy may be waived by the company or its authorized agent, and such waiver may be shown by direct proof that credit was given or can be inferred from circumstances. Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117.

72.- Policy provided that (1) premium was due and payable on delivery of policy; (2) that when credit was given to the extent of four months, policy should be in force during that time; (3) but unless premium was paid within the four months, company should not be liable for a loss occurring thereafter. It was delivered without exacting payment, and no time of credit was specified. The premium upon

Waiver.

a previous policy obtained under similar attended to, and that on previous renewal circumstances had been paid and accepted of policy issued premium was received after the expiration of the four months. and accepted after the issue of the policy, A loss occurred after expiration of four Held, to be evidence of waiver of condimonths and premium had not been paid tion in regard to prepayment of the perHeld, evidence sufficient to sustain a find- mium for renewal. Peppit v. N. B. & M. ing of waiver of condition in regard to Ins. Co., 1 Russel & G. 219 (N. S.) payment of premium. Bowman v. Agricultural Ins. Co., 59 N. Y. 521.

81. If an insurance company, by its habits of business, creates in the mind of a policy-holder the belief that payment may be delayed till demanded, or otherwise waives the right to demand a for75a.- Acknowledgment in policy of re- feiture, the company may be thereby ceipt of the premium will not bind the estopped from enforcing the forfeiture company when policy is not intended to which the express provisions of the policy be a binding instrument until premium is declare shall take place on failure to pay paid. Western Assur. Co. v. Provincial | before a certain day. North Alabama Ins. Co., 5 Tupper 190, (Can.) Home Protection v. Avery, 85 Ala. 348; 7 Am. St. Rep. 54; 5 So. Rep. 143.

76.- Evidence that company had marked policy renewed, and of custom 82. The payment of the premium in thus to mark policies renewed before cash may be waived by an agent authorpayment of premium, and that such ized to deliver policies and receive paypractice was recognized by the general ment, notwithstanding a stipulation in agent, and that such renewals were the policy to the contrary. Home Ins. understood to be subject to such agent's Co. v. Gilman, 10 West. Rep. 842; 112 Ind. disapproval, and the local agent being 7; 13 N. East. Rep. 118.

charged with the amount of the pre- 83.— Where an authorized agent of the mium, and that the condition in regard to company delivers a policy acknowledgpayment of renewal premiums was not ing the payment of the premium, such

Waiver.

acknowledgment concludes the company mium. *Rockford Ins. Co. v. Warne, 22 from assailing the legal existence of the Ill. App. 19. policy. Id.

84.- Delivery of policy without exacting prepayment of the premium operates as a waiver of any condition requiring it. East Tex. Fire Ins. Co. v. Mims, 1 Tex. Ct. App. Civ. Cas. §1323; Equitable Ins. Co. v. McCrea, 8 Lea 541 (Tenn.)

85.- Where it was the fault of the insurance company that money paid as premium did not reach the company before the loss occurred, in an action on the policy the company is estopped to deny the validity of the claim. Authorities cited. Universal F. Ins. Co. v. Block, 1 Cent. Rep. 557; 109 Pa. 535.

90. A local insurance agent clothed with general power to receive proposals for insurance and countersign and deliver policies is presumed to have the power of the company, within the territory assigned to him, to waive the immediate payment of premiums and to make contracts for credit; and an agreement by him to give a longer credit than he is authorized to give is binding on the company. *Farnum v. Phonix Ins. Co., 83 Cal. 246; 23 Pac. Rep. 869.

A local insurance agent clothed with general power to receive proposals for insurance and countersign and deliver poli86.- An agent of an insurance com cies has an ostensible power to waive a pany who is authorized to receive appli- provision that the use of general terms, or cations for insurance, to forward the ap- anything less than a distinct, specific plications to the company, to deliver the agreement indorsed on the policy, shall policies to the insured, and to collect the not be construed as a waiver of any conpremiums from him, and who is responsi-dition; and hence a waiver by such agent ble to the company for the payment of the is not invalid because not indorsed on the premiums or the return of the policies to policy. Id. the company, has power to waive a condition in a policy that the company shall not be liable until the premium is actually paid. Elkins v. Susquehanna Mut. Ins. Co., 4 Cent. Rep. 761; 113 Pa. 387.

87.— An express provision in an insurance policy that the company shall not be liable until the premium be actually paid is waived by the unconditional delivery of the policy to the assured as a completed and executed contract, under an express or implied agreement that a credit shall be given for the premium. *Farnum v. Phoenix Ins. Co., 83 Cal. 246; 23 Pac. Rep. 869; *Nebraska & I. Ins. Co. v. Christiensen, 45 N. W. Rep. 924 (Neb.); * Brownfield v. Phoenix Ins. Co., 35 Mo. App. 54; Hodge v. Security Ins. Co, 33 Hun 583 (N. Y.)

91. A provision in a policy making payment of premium a condition of its validity may be waived by the issuing agent so far as to give time for such payment, in spite of a prohibition in the policy of waivers by agents, where the course of dealing has been for the agent to extend such credits, he becoming the company's debtor, and the assured his. *Long v. North British, etc., Ins. Co., 137 Pa. 335.

92.- A parol waiver of payment of premiums upon an insurance policy, made by the secretary of the company when away from its business office, is not binding upon the company, written evidence being required. *Hastings v. Brooklyn L. Ins. Co., 17 N. Y. Supp. 333; 11 Ry. & Corp. L. J. 110.

93.- Demand of payment of premium 88.- Notwithstanding a clause in the and failure then to pay are essential to policy that "this shall not be liable until the forfeiture of a policy of insurance for the actual payment of the premium," if the nonpayment of premium, where the inpolicy is actually delivered without pay-sured was given a credit by the agent who ment, a presumption of the waiver of such procured the insurance, and was assured clause and a giving of short credit for the by him after the expiration of such credit premium will arise. *Daft v. Drew, 40 Ill. that the policy remained in force, and App. 266. was told, when she offered to pay the premium, to let it rest until the company had determined whether or not to cancel the policy. *Mallory v. Ohio Farmers Ins.. Co., 51 N. W. Rep. 188 (Mich.),

89.— If an insurance agent knows that a building insured by him as a barn is used for other purposes, such use will not defeat the policy in an action for the pre

General Rules.

1. General rules. Policies of insuring him, the policy is not a contract with ance are not deemed, in their nature, in- the insured; but it seems it may be othercidents to the property insured; and do wise if situation is caused by the neglect not cover any interest which a person or mistake of company's agent, without other than the insured may have in the any misrepresentation or suppression of property, as heir, grantee, mortgagee, or the truth on part of person desiring to be