SECTION XXIII. If this policy be made by a mutual or other company having special regulations lawfully applicable to its organization, membership, policies or contracts of insurance, such regulations shall apply to and form a part of this policy as the same may be written or printed upon, attached, or appended hereto. New York Standard Formn. New. Cases in which mutual companies were parties are inserted throughout the book under the appropriate title or subject matter. Cases determining questions of assessment or notes, governed by local law, are omitted. SECTION XXIV. 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 and 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, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. New York Standard Form. New in phraseology and arrangement. I. WAIVER. General rules. for the benefit of the corporation may be As to necessity of writing or en-sylvania Ins. Co., 46 Pa. 323. Knowledge, intention and prejudice to insured essential elements. By officers of company. By agents. Knowledge of forfeiture when pol icy issues. Evidence and procedure. Question for jury. Other special cases. 1. General rules. A limitation or condition in a policy of insurance intended 2. There can be no waiver where the act or omission to act or statement on part of the company is procured by the false representation of the assured. Taylor v. Ins. Co., 51 N. H. 50. 3. A condition of forfeiture may be waived by any act from which consent of company may be inferred. Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526. 4. A contract of insurance contains two classes of stipulations: first, those relating to matters and things prior to the loss and which define and determine the limits of the risk; and, second, those which relate to matters and things occur General Rules. 272 (N. Y.); Okey v. State Ins. Co., 29 Mo. App. 105; *Billings v. German Ins. Co., 52 N. W. Rep. 397 (Neb.); City of London Ins. Co. v. Smith, 15 Duval, 69 (Can. Sup.) ring after a loss and having for their object 808; *Haas v. Montauk Ins. Co., 49 Hun, to determine the mode in which the loss is to be established, adjusted and recovered. As to the former, there is less readiness to find circumstances of waiver than in case of the latter. Hinman v. Hartford Fire Ins. Co., 36 Wis. 159. 5.- A waiver to be operative must be supported by an agreement founded upon a valuable consideration, or the acts relied on as a waiver must be such as to estop a party from insisting on a performance of the contract or the forfeiture of the conditions. Ins. Co. v. La Croix, 45 Tex. 158; Ripley v. Ætna Ins. Co., 30 N. Y. 136; but this last case is overruled by Titus v. Glens Falls Ins. Co., 81 N. Y. 410; see No. 6. 7.- An insurance company by demanding further proofs of loss after knowledge of a forfeiture by the assured by a change in the condition of the property, thus attempting to enforce the contract, with which demand the assured complies and is thereby put to expense and inconvenience, waives its right to insist upon a forfeiture. *Roby v. American C. Ins. Co., 120 N. Y. 510; 31 N. Y. S. Rep. 560; 19 Ins. L. J. 762; 24 N. East. Rep. 808; Rockford Ins. Co. v. Travelstead, 29 Ill. App. 654. 8.- Successive objections to proofs of loss, with knowledge of facts constituting a forfeiture, without claiming it, may operate as a waiver. *Cobbs v. Fire Asso., 17 Ins. L. J. 868; 68 Mich. 463. 9. And it seems that constructive notice to the company of facts which might be claimed to effect a forfeiture is sufficient. Gans v. St. Paul Fire Ins. Co., 43 Wis. 108. 6.- Where there has been a breach of condition, company may or may not take advantage of such breach and claim a forfeiture. It may, consulting its own interests, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result. A waiver cannot be inferred from its mere silence. It is not obliged to do or say anything to make the forfeiture effectual. 10. When the insured is disposed and It may wait until claim is made under the makes an effort to have a mistake corpolicy, and then in denial thereof or in rected in the policy, but is prevented or defense of a suit commenced therefor thrown off his guard and dissuaded allege the forfeiture. But it may be therefrom by the act or declaration of the asserted broadly that if in any negotia-company, the latter is estopped from tions or transactions with the assured, setting up in bar of an action upon the after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the assured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is as matter of law waived; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel. Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Carpenter v. Continental Ins. Co., 15 Ins. L. J. 667; 61 Mich. 635; Smith v. St. Paul F. and M. Ins. Co., 3 Dak. 80; 12 Ins. L. J. 33; Hollis v. State Ins. Co., 65 Iowa, 454; *Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354; *Grubbs v. North Carolina Ins. Co., 20 Ins. L. J. 784; 13 S. E. Rep. 236; 108 N. C. 472; *Roby v. Amer. Cent. Ins. Co., 120 N. Y. 510; 19 Ins. L. J. 762; 24 N. East. Rep. policy, the letter of the contract, and that the situation of the property does not agree therewith, and from claiming the strictly legal consequences. Maher v. Hibernia Ins. Co., 67 N. Y. 283; affi'g, 6 Hun, 353. 11. As an insurance company may waive any condition in the policy inserted for its benefit, a forfeiture does not necessarily follow upon a breach, but depends upon option of the company. Ins. Co. v. Norton, 6 Otto, 234 (U. S.); Pratt v. N. Y. Central Ins. Co., 55 N. Y. 505. 12.- Policy is voidable at option of insurance company, which cannot sleep upon its intention to avoid the policy to the prejudice of the assured. The forfeiture may be waived by laches of the company misleading persons interested in the policy to their prejudice. Appleton General Rules. Iron Co. v. British America Assurance der the policy, no reply is made indicating Co., 46 Wis. 23. the intention of the company to take 13.- The doctrine of waiver should not advantage of the forfeiture, and the inbe extended so as to deprive a party of a de-sured afterwards makes proof of loss, the fense merely because he negligently or in- forfeiture is thereby waived. Smith v. cautiously when a claim is first presented, St. Paul F. & M. Ins. Co., 3 Dak. 80. while denying his liability, omits to dis- 19. The acceptance of the cash preclose the ground of his defense, or states mium by the general agent, after default another ground than that upon which he and notice of the loss, operates as a waiver finally relies. There must in addition be of the forfeiture, and renders the company evidence from which the jury would be continuously liable on the policy, as justified in finding that with full knowl-though the note given for cash premiums edge of the facts there was an intention had been paid at maturity. Id. to abandon, or not to insist upon the particular defense afterward relied upon, or that it was purposely concealed under circumstances calculated to and which actually did mislead the other party to his injury. Devens v. Mechanics' and Traders' Ins. Co., 83 N. Y. 168. 20.- Waiver of forfeiture by accepting proofs of loss, when the adjusting agents of the company had made examination of the assured, and were put in possession of evidence, by way of admissions of third parties under oath, which gave them the opportunity then of making the defenses sought to be established upon the trial; but the company saw fit to remain silent, and, without notice of these different items of defense, put the assured to the inconvenience and expense of perfecting their proofs of loss, which, under its 14.- Company may refuse to pay without specifying any ground, and insist upon any available ground, but if they plant themselves upon a specified defense, and so notify the assured, making no objection to proofs, they should not be permitted to subsequently make such objec-defense of forfeiture, was wholly unnecestion after the latter has acted upon their position as announced, and incurred expenses in consequence of it. Brink v. Hanover Fire Ins. Co., 80 N. Y. 108; compare decision on previous appeal 70 N. Y. 593; and see Castner v. Farmers' Ins. Co., 12 Ins. L. J. 456; 46 Mich. 15; 50 Mich. 273. 15.- Waiver can not be established by a general custom among insurance companies and brokers. Peoria Sugar Ref'y v. Susquehanna Ins. Co., 20 Fed. Rep. 480; 14 Ins. L. J. 333. sary,-the company must be held to have waived such defenses. A general statement in letters of the company calling for proofs, that they reserved all manner of defenses, was insufficient. Marthinson v. North British & M. Ins. Co., 7 West. Rep. 637; 64 Mich. 372. 21. A waiver that would preclude an insurer from relying on the terms of the policy must be in the nature of an estoppel. The company must, by some act of an agent having real or apparent authority, have done or said something that do, something whereby he was prejudiced. *Weidert v. State Ins. Co., 19 Ins. L. J. 740; 24 Pac. Rep. 242; 19 Ore. 261. 16.- An insurer is not required to for-induced the plaintiff to do, or forbear to mally declare a forfeiture of a policy upon the breach of a condition therein mentioned, but it will be sufficient to set up such breach in defense when sued for the loss. *Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354. 17.- Waiver of the forfeiture of a fire insurance policy gives it the same binding force originally possessed by it. Siltz v. Hawkeye Ins. Co., 71 Iowa, 710; 29 N. W. Rep. 605. - 22. Any course of action on the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture will not be incurred, followed by due conformity on his part, will estop the company from insisting on a forfeiture. *Spoeri v. Massachusetts Mut. Ins. Co., 19 Ins. L. J. 92; 39 Fed. Rep. 752. 18.-If, in any negotiations or transactions after forfeiture, under circumstances 23. In a suit on an insurance policy, indicating to the company or its authorized the company is confined to the objections agent that the insured makes a claim un- to payment made before the commence ment of the action. ington F. & M. Ins. N. W. Rep. 586. General Rules. 24.- An insurance company can waive a forfeiture on account of a breach of any condition in the policy by express language or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result. *German Ins. Co. v. Gibson, 53 Ark. 494; 20 Ins. L. J. 248; 14 S. W. Rep. 672. *Richards v. Wash-a mortgagee to whom loss is made payCo., 60 Mich. 420; 27 able, and the company with knowledge of a forfeiture arising from foreclosure proceedings, objects to same upon the ground that they should be sworn to by the insured or owner of the property, and for that reason notifies the mortgagee by letter that it declines to accept or receive the same, there is no waiver of the forfeiture; nor is there any waiver by the company's omission to assert the forfeiture at time it objected to the proofs. *Armstrong v. Agricultural Ins. Co., 130 N. Y. 560; rev'g, 56 Hun, 399; 31 N. Y. St. Rep. 201; 9 N. Y. Supp. 873. 25.- A provision plainly printed upon the face of an insurance policy, that no officer, agent, or other representative, of the company shall have power to waive any of its provisions, is valid and binding on the insured. *Gould v. Dwelling House Ins. Co., 21 Ins. L. J. 328; 51 N. W. Rep. 455; 90 Mich. 302. See Nos. 79, 80. 25a.- Refusal of an insurance company to pay a loss on a specified ground estops it from asserting other grounds relieving it from liability of which it had full knowledge, where the assured has incurred expense and brought suit in the belief that the only objection was that stated. *Towle v. Ionia, E. & B. Farmers' Mut. F. Ins. Co., 51 N. W. Rep. 987 (Mich.) 26.- A party to a contract containing a provision that it shall not be modified or changed except by writing signed by him, may by conduct estop himself from enforcing the provision against a party who has acted in reliance upon the conduct, and so the acts of an agent, who possesses the power of the principal or who has been held out by the principal to possess the power, in respect to the provision alleged to have been altered or changed may also estop his principal. Follett, Ch. J. *Bishop v. Agricultural Ins. Co., 130 N. Y. 496. 27. Silence operates as an assent and creates an estoppel only when it has the effect to mislead. There must be such conduct on the part of the insurer as would, if it were not estopped, operate as a fraud on the party who has taken or neglected to take some action to his own prejudice in reliance upon it. When under duty to speak, or when failure to speak is inconsistent with honest dealing and misleads another, then silence may be deemed to be acquiescence. *More v. N. Y. Bowery Ins. Co., 130 N. Y. 537. 28.- When proof of loss is sworn to by 29. While a waiver of a forfeiture need not be based upon a technical estoppel, in absence of an express waiver, some of the elements of an estoppel must exist; the insured must have been misled by some action of the company, which caused the omission to comply with the condition, or it must have done something, after knowledge of a breach of the condition, which could only be done by virtue of the policy, or required something from the insured which he was bound to do only at the request of the company under a valid policy, or exercised a right which it had only by virtue of such policy. A company can require performance by the insured after a fire of those conditions which he has contracted to perform, and which are essential to his cause of action, and preliminary to the assertion of any claim, without a waiver of its rights under the contract, provided the insured is not misled, or required to do something that he did not agree to do. Id., distinguishing Titus v. Glens Falls Ins. Co., 81 N. Y. 410. See No. 6. 29a. Insured is bound by limitations on agent's authority as imposed by the New York Standard Form; after issue and acceptance of the policy waiver can be evidenced only in writing as prescribed, unless power of agent as expressed in the policy has been enlarged by usage of the company, its course of business, or by its consent express or implied. Immaterial whether insured has read the policy or not. *Quinlan v. Providence-Washington Ins. Co., 31 N. East. Rep. 31; 21 Ins. L. J. 650; 133 N. Y. 356; aff'g, 15 N. Y. Supp. 317; 39 N. Y. S. Rep. 820. 29b.- The opinion in preceding case is As to Necessity of Writing or Indorsement. applicable to the Standard Form and the be regarded as the measure of his power; nor is there any reason why courts should refuse to enforce forfeitures plainly incurred, which have not been expressly or impliedly waived by the company." Andrews, J., Id. 66 policy and during its continuance. Pechner v. Phænix Ins. Co., 65 N. Y. 195. But see Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5, as bearing upon the question of authority of agent. subject of waiver is of such importance that same is here inserted at length: The Act (chapter 488, Laws of 1886,) providing for a uniform policy known as the 'Standard Policy,' and which makes its use compulsory upon in- 30. As to necessity of writing or insurance companies, marks a most import-dorsement. The provision that an inant and useful advance in legislation relat-dorsement shall be made upon the policy ing to contracts of insurance. The practice is nothing but a direction that an act which prevailed before this enactment, shall be done, and falls into the class of whereby each company prescribed the ordinary conditions precedent. And form of its contract, led to great diversity such provision may be waived or the comin the provisions and conditions of insur-pany estopped by its conduct from insistance policies, and frequently to greating upon a forfeiture, by reason of facts abuse. Parties taking insurance were occurring after issue and delivery of often misled by unusual clauses or obscure phrases concealed in a mass of verbiage, and often so printed as almost to elude discovery. Unconscionable defenses, based upon such conditions were not infrequent, and courts seem some- 31.- Policy provided that "nothing times to have been embarrassed in the but a distinct, specific, agreement, clearly attempt to reconcile the claims of justice expressed and indorsed, shall operate as with the law of contracts. Under the law a waiver of any printed or written conof 1886, companies are not permitted to dition, warranty or restriction therein.” insert conditions in policies at their will. Company relied upon this clause to deThe policies they now issue must be uni- feat a claim of waiver in connection with form in their provisions, arrangement, and proofs. Held, that it referred to those type. Persons seeking insurance will conditions and provisions of the policy come to understand to a greater extent which enter into and form a part of the than heretofore the contract into which contract, of insurance, and are esthey enter. Now, as heretofore, it is sential to make it a binding contract competent for the parties to a contract of and which are properly designated insurance, by agreement in writing or by as conditions; and that it has no parol, to modify the contract after the reference to those stipulations which are policy has been issued, or to waive con- to be performed after a loss has occurred. ditions or forfeitures. The power of Franklin Fire Ins. Co. v. Chicago Ice Co., agents as expressed in the policy may be 36 Md. 102; S. P. Rokes v. Amazon Ins. enlarged by usage of the company, its Co., 51 Md. 512. And see Walsh v. Hartcourse of business, or by its consent ex-ford Ins. Co., 73 N. Y. 5; Hartford Ins. press or implied. The principle that Co. v. Webster, 69 Ill. 392; Meyers v. Gercourts lean against forfeitures is unim-mania Ins. Co., 27 La. Ann. 63. paired, and in weighing evidence tending 32.- When no particular form of apto show a waiver of conditions or for-proval to a transfer is required, knowledge feitures, the court may take into consid-by company of the facts and retention of eration the nature of the particular con- the premium, with such knowledge, is dition in question, whether a condition precedent to any liability, or one relating to the remedy merely, after a loss has been incurred. But where the restrictions upon an agent's authority appear in the policy, and there is no evidence to show that his powers have been enlarged, there seems to be no good reason why the authority expressed should not evidence from which jury may find that assent was given. Hendrickson v. Queen Ins. Co., 30 Up. Can. Q. B. 108. 33.- It seems that a condition requiring written evidence of a waiver is operative, and a waiver can be made only in prescribed mode, i. e. by written endorsement on the policy. Logan v. Commercial Union Ins. Co., 13 Duval, 270 (Can. |