before or after a loss" (78). This clause is frequently brought in question in connection with overvaluation in making up the proof of loss. It is well settled that mere exaggeration on the part of the insured, however gross, will not avoid the policy, so long as his claims are made in good faith. It has also been held that, even though the valuation is intentionally false, it will not avoid the policy if in fact the actual loss was up to the face of the policy. This seems wrong, as it is contrary to the clear language of the policy, and the weight of authority is against it (79). SECTION 4. LIFE INSURANCE. § 86. Language of policy. There is no such large number of conditions in life insurance as are found in fire insurance policies. Certain ones in connection with suicide and insanity will be considered later on (§§ 120-23). § 87. Time of payment of premium. One clause of the life policy that should be examined at the present time is that requiring the premium to be paid on or before a fixed date. If this date falls on Sunday, the insured has until the following day to make his payment (80). The right of paying the agent of the company, if he can give a receipt properly signed, has been held to be merely a privilege extended to the insured by the company, with the consequent result that it is no excuse for non-payment that the agent did not let the insured know of the premium day (81). And it has also been held, although the (78) App. E, 1. 33. (79) Dollorf v. Insurance Co., 82 Me. 266. (80) Hammond v. Insurance Co., 10 Gray (Mass.) 306. (81) Williams v. Insurance Co., 31 Iowa, 541. decision is perhaps open to question, that if the local agent dies or cannot for any reason be found, this will not excuse non-payment by the insured on the date specified (82). If payment is made by mail or express it must reach the company upon the day on which it is due, unless the course of business between the company and the insured has authorized the use of the mail or express, in which cases it is enough if the premium is mailed on the premium day, even though it does not reach the company until later, or never reaches the company (83). § 88. Incontestable clause. Most life insurance policies have a clause providing that the policy shall be incontestable after two years, or some other stated time. This clause waives all defenses by the company, save that of insurable interest. Since this is a requirement imposed by public policy, it cannot be waived no matter how willing the parties are so to do (84). But fraud, or suicide, cannot be used as a defense, if the policy contains such a clause as above given (85). Of course, if the policy reserves the right, as it frequently does, to contest for nonpayment of premiums, fraud, or suicide, then the company may do so. (82) Bulger v. Insurance Co., 63 Ga. 328. (85) CHAPTER IV. WAIVERS. SECTION 1. PRINCIPLES OF WAIVER. § 89. Introductory. Despite the numerous clauses of forfeiture that have been considered in the last chapter, it is a matter of common knowledge that in a large number of cases these conditions are violated to a greater or less degree by the insured, without a forfeiture of the policy following. The principles upon which the preservation of the policy is based, under such circumstances, is a matter that deserves careful consideration. § 90. What is a waiver? One way in which the policy may be preserved under such circumstances is suggested by the language of the policy itself. Thus, the language of the New York Standard policy, at the beginning of the paragraph containing most of the conditions of forfeiture (1) is that the policy shall be void, "unless otherwise provided by agrement indorsed herein or added hereto." Clearly, if there was an agreement on the policy that the insured could have other insurance, or run his plant later than ten o'clock, or could keep extra-hazardous articles, etc., so doing would not be a cause of forfeiture, for the company would by its consent have waived the right that (1) App. E, 1. 36. it would otherwise have had to declare the policy void. This principle is of much broader application than merely to formal written waivers. The general principle exists, which is equally applicable in marine, fire, life, and accident insurance, and which is constantly applied by the courts, that, if any representative of the company competent so to do, consents, either expressly or by implication, that the insured may do something inconsistent with the face of the policy, or condones his having so done, the consent of the agent so given will be held to be a waiver of the company's right to enforce a forfeiture on that ground. § 91. Power of agent to waive: Provisions of policies. Obviously a very important question in this connection is, what agents can thus waive forfeitures of the policy? The New York Standard policy provides (2): "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." Similar clauses are found in the life policies. Thus, one policy has this common form: "No person except an executive officer of (2) App. E, 11. 231-240. the company, or its secretary at its head office in New York, has power on behalf of the company to make, modify, or alter this contract, to extend the time for paying premiums, and bind the company by making any promise or by accepting any representation or information not contained in the application for this contract." § 92. Such provisions largely ineffective. As to these provisions, the courts have universally held that they are by no means as sweeping as they sound. The first part of the provision in the New York Standard policy as to who can waive, and as to what conditions can be waived, is treated simply as a statement of fact, that may or may not be true. If as a matter of fact the agent making the waiver in question can be shown to have made similar waivers before then, the court would say that the statement in the policy is not true, and say that in spite of it this agent did in fact have the power to waive, and the present waiver would also be recognized as good and binding upon the company. Thus, in a case involving the same principles in a life insurance policy, the policy provided that if the premium notes were not paid at maturity the policy should be void; and there were other clauses to the effect that agents could not alter the policy or waive forfeitures. The insured gave premium notes on which the agent gave an extension of time, so that they were not paid at maturity. The insured died before they were paid, and the company claimed that the policy was forfeited. The court allowed a recovery, saying: "That it did authorize its agents to take notes, instead of money, for premiums, is perfectly evident from its con |