stant practice of receiving such notes when taken by them. That it authorized them to grant indulgences on these notes, if the evidence is to be believed, is also apparent from like practice. It acquiesced in and ratified their acts in this behalf. For a long period, it allowed them to give an indulgence of ninety days; after that of sixty; then of thirty days. It is vain to contend that it gave them no authority to do this, when it constantly allowed them to exercise such authority, and always ratified their acts, notwithstanding the language of the written instruments. We think, therefore, that there was no error committed by the court below, in admitting evidence as to the prac tice of the company in allowing its agents to extend the time for payment of premiums and of notes given for premiums, as indicative of the power given to those agents; nor any error in submitting it to the jury, upon such evidence, to find whether the defendant had or had not authorized its agent to make such extensions; nor in submitting it to them to say whether, if such authority had been given, an extension was made in this case" (3).

§ 93. Same (continued). The second part of the language quoted from the New York Standard policy relating to the way in which waivers can be made, and similar provisions in other policies, are limited by these considerations: First, it is to be noticed that this limitation is in itself but one clause of the policy, and is therefore waivable just as much as any other clause of the policy; second, this limitation is held to apply only to express waivers on the part of the company, and to have no application at

(3) Insurance Co. v. Norton, 96 U. S. 240.

all to implied waivers (4). On the same principle, a clause which is frequently found in policies, providing that the person making out and answering the application shall be deemed to be the agent of the insured and not of the company, is universally disregarded by the courts as being not in fact true.

§ 94. Only known causes of forfeiture are waived. It is obvious that only causes of forfeiture known to the company or its agents, at the time when the act that is relied on by the insured as a waiver of the forfeiture was done by the company, will be held so to be waived. Any doctrine that the company waived all causes of forfeiture, whether known to it or not, would obviously be absurd and unjust. This principle is very well illustrated by a leading case on the point. A life insurance policy provided that it should be void if the premiums were not paid on or before the days mentioned for the payment, and also that it should be void if the insured resided in any part of the United States south of 33° of north latitude, between July 1st and November 1st. It also had the usual clauses that agents could not waive any of the terms of the policy. The insured had been in the habit for some time of paying his premiums after they were due, and these overdue premiums had been regularly accepted by an agent of the company. The insured went to New Orleans, which is below 33° of north latitude, during the month of August. While there he paid his premium to his home agent some time after it was due, the agent not knowing that the insured was in New Orleans. He died shortly thereafter.

(4) Bennett v. Insurance Co., 203 Ill. 439.

In an action on the policy the company set up as a defense, first, that the insured had not paid his premium on time; and, second that he had violated the condition of the policy with regard to residence. The contention of the plaintiff was that the company had waived both these causes of forfeiture. The court decided the case in the following language:

"It was the habit of the agent to give such renewal receipts, whenever the premiums were paid after the time stipulated; and his accounts to the home office showed such subsequent payment. His action in this respect was not questioned by the company; and the premiums were retained by it without any pretense that the policies had ceased to be obligatory for want of punctuality in their payment. The mode of dealing by the agent with persons taking out policies at the local office, his use of renewal receipts, his acceptance of premiums after the day on which they were payable, were all known to the home company, and its retention of the premiums thus received was an approval of his acts. So far, then, as the waiver of the forfeiture incurred for non-payment of the premiums is concerned, it is clear that the company, by its course of dealing, had, notwithstanding the provision of the policy, left the matter to be determined by its local agent, to whom the renewal receipts were intrusted.

"But, so far as the forfeiture arose from the residence of the insured within the prohibited district, the case is different. There is nothing in the acts of the company which goes to show that it ever authorized its agents to waive a forfeiture thus incurred, or that it ever knew of

any residence of the insured within the prohibited district, until informed of his death there. In every case where premiums were received after the day they were payable, the fact that a forfeiture had been incurred was made known to the company from the date of the payment, and the retention of the money constituted a waiver of the forfeiture; but no information of a forfeiture on any other ground was imparted by the date of such payment. The agent receiving the premium, in the case at bar, testified that he knew nothing of the residence of the insured within the prohibited district during the excepted period, and the evidence in conflict with his testimony was slight" (5).

§ 95. What amounts to a waiver? It must be noticed further that, as a general thing, to constitute a waiver on the part of the company there must be some action by it or its agents. Mere silence on the part of the company is usually not enough to constitute a waiver. Thus, the insured after a fire sent in his notice of loss which was duly received by the company, but did not send in his proof of loss. When an attempt was made to collect on the policy, he was met by the defence that he had not satisfied the condition as to the proof of loss. He attempted to allege a waiver of that requirement by the company, owing to the fact that they had received the notice of loss and made no requirement on him to send in the proof, but the court held that this condition was unsatisfied, saying: "The policy itself is the most solemn notification possible of the imperative prerequisites of furnishing such

(5) Insurance Co. v. Wolff, 95 U. S. 326.

proofs. It is there stipulated that they must be furnished as soon as possible after the fire, and this stipulation is a standing notice of the requirement. It stands to reason that this notice need not be reiterated by the insurer nor any special attention of the insured called to it. The mere silence of the underwriter or insurer, or his failure to specify the non-production of such preliminary proofs as an objection to payment of the loss, is not sufficient evidence to justify a jury in inferring a waiver of the production" (6). There are certain exceptions to this rule, where for one reason or another there is an affirmative duty on the part of the insurer to speak. These cases, however, will be considered later on (§ 101-2).

§ 96. Must the insured be prejudiced? Whether or not, in order to create a waiver, it is necessary that the insured, as a consequence of what the company has done, should have either acted or failed to act in such a way as to prejudice himself, is a matter on which the courts are not agreed. The general principle of the law, outside of insurance law, seems to be that there must be some prejudice enuring in order that a person may take advantage of an implied waiver, and this also seems to be the general weight of authority in insurance cases as well, although there are decisions to the contrary.

SECTION 2. TIME OF FORFEITURE AND WAIVER.

§ 97. Waiver after breach of policy by the insured. Coming now to the details of waiver, the cases may be roughly divided into two classes. The first class is where

(6) Insurance Co. v. Oates, 86 Ala. 558.