Dissenting opinion by GROVER, J. by Plaintiffs to whom the loss was made payable for the premium; and the policy contained a clause providing that, if the note was not paid at maturity, the full amount of premium should be considered as earned, and that the policy should be void while the note remained overdue and unpaid. The note matured and was not paid, and during such time the schooner was lost by one of the perils covered by the policy. Upon the trial in the Superior Court, in New York, the questions litigated were, whether David P. Dobbins, of Buffalo, was authorized by the Defendant to waive or modify the above clause, and if so, whether he in fact had done so. At the close of the evidence the Defendant's counsel moved for a dismissal of the complaint, which was granted by the Court, to which the proper exceptions were taken by the Plaintiffs' counsel. After judgment the Plaintiffs appealed to the General Term, and, after affirmance by that Court, the Plaintiffs appealed to this Court. That portion of the policy providing that, unless the note given for the premium should be paid at maturity, the policy should be void until the same was paid, constitutes a valid agreement between the parties (Beadle v. Chenango County Mutual Insurance Company, 3 Hill 161). This was conceded upon the argument by Plaintiffs' counsel. It follows that the vessel having been lost after maturity and before payment, the Defendant is not liable, unless the Plaintiffs showed a waiver of that clause of the policy, or an estoppel. Subsequent payment of the note would not have aided the Plaintiffs. Such payment revived the policy only from the time of its being made, and would not make it valid during the interval that the note remained past due. Hence the proof given of offers to pay after the loss, and the inquiry whether when such offers were made the party making them had heard of the loss, were wholly immaterial. The only questions litigated upon the trial, upon which the right of recovery depended, were whether the Defendant had waived this provision, or whether what had been done estopped the Defendant from setting it up as a defence. To determine these questions it was necessary to ascertain the Dissenting opinion by GROVER, J. extent of the authority of Dobbins, the Defendant's agent at Buffalo, and also what he had done in the premises. The evidence showed that the Defendant's principal place of business was in the city of New York; that Dobbins was its agent at Buffalo; that he kept an office there in which he transacted the insurance business of the Defendant at that place, which was of considerable amount; that he was furnished with printed blank policies, executed by the officers of the company; that he made contracts of insurance on behalf of the Defendant, filled up the policies in accordance therewith, and issued them to the assured; that he took notes for the premium without interest, running not to exceed four months; that, to a large extent, he had charge of the collection of such notes, that, at maturity, he was in the habit of renewing such notes with the knowledge of the Defendant by taking other notes for the whole or a part thereof, in his discretion, although he testifies that his rule was to require part payment and additional security. These facts prove, I think, that Dobbins was the general agent of the company, with full power to negotiate contracts of insurance binding upon the Defendant; that, in making such contracts, he had authority to strike out the clause in question, and make such other modifications therein as he saw fit; that he had the like authority, in relation to the collection of the notes, to insist upon prompt payment, to require new notes with additional security, or give an extension upon original notes. Dobbins testifies that he always included interest in new notes taken by him. This, in case of a new note payable in future, would have been necessary, or the company would have lost the interest. After maturity of an original note the law requires payment of interest until paid. While power to an agent should not be implied beyond what was fairly within the contemplation of the parties, as ascertained from the delegation of authority and the course of transacting business by the agent, as known to the principal in the present case, that delegation and the mode of transacting business by Dobbins shows that he was clothed with full authority by the Defendant, in respect to renewing, extending, Dissenting opinion by GROVER, J. and collecting premium notes in his hands which he had taken, and that this included power to make arrangements respecting the clause in question, which was obviously intended only to secure payment of the note (See Story on Agency, §§ 53, 106, 126; Sheldon v. The Atlantic Co., 26 N. Y. 460; Wood v. Poughkeepsie Mutual Ins. Co., 32 N. Y. 619; Lightbody v. The North Am. Ins. Co., 23 Wend. 18). It remains to inquire whether Dobbins did, in fact, waive the clause, or do anything estopping the Defendants from defending upon that ground. This must, in the present case, be determined by the testimony given by E. K. Bruce, the agent of the assured; for, although his testimony was entirely contradicted by Dobbins, the Court, upon a motion for nonsuit, could not take the contradiction into consideration, as that only presented a question as to the credibility of witnesses, to be determined by the jury, which the Court refused to submit. The testimony of Moore, as to the conversation between him and Dobbins, was inadmissible, had it been objected to by the Defendant (Trustees Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 153). Besides, Moore, at the time, was not the agent of either party, and anything said to him could not constitute a waiver or an estoppel against the Defendant. Bruce testified that he was agent of the assured; that he saw Dobbins, at about the time the note matured, at the corner of the Exchange in Buffalo, and that Dobbins told him the note would be all right to lie over; that the company would as soon have the interest as the money; that he told Dobbins the endorsers were perfectly good; that Dobbins said he knew that. Upon cross-examination the witness testified that this was shortly after the maturity of the note; that he told Dobbins he wanted him to wait until the Zenobia came from Chicago for payment of that note-referring to the note given for the premium; that he told him the note was perfectly good; he said he knew that. Upon reëxamination, in answer to a request to state all that was said, the witness testified that he told Dobbins that he wanted the note extended, and to wait until that vessel came down from Chicago; that he (Dobbins) said the note was perfectly good; that the Dissenting opinion by GROVER, J. company would as soon have the interest as the money, and made no objection whatever to the arrangement. It may be remarked that the credibility of this testimony was a question solely for the jury; and that neither the Court, upon the trial, nor this Court, has anything to do with the suggestions of counsel upon that question. This testimony, if credited by the jury, authorized a finding that the company agreed that the note might lie over for a few days, or for a reasonable time for the vessel to return from Chicago (upon which trip she was lost), although such agreement, being without consideration, had no validity as an extension of time on the note, and notwithstanding an action for its collection might have been immediately brought. Yet, when the payment was secured by a forfeiture of the policy, I think such agreement will estop the party from insisting upon the forfeiture. An agreement to waiver the forfeiture, like all others, requires a consideration. A party is estopped when he has intentionally induced another to do or forbear the doing of acts, by his representations or agreements, in case such other would be injured by showing the representations untrue or the agreement invalid. In this case, Dobbins and Bruce both knew of the clause voiding the policy during nonpayment of the note. Both are presumed to have known that an agreement to extend the note had no validity, unless made upon consideration. Both knew the clause was only designed to secure prompt payment. Under these circumstances (if Bruce's testimony is true) they agree to extend the time for payment of the note. The fair inference is, that Bruce is thereby induced to delay payment, and that Dobbins designed he should so delay. Under such a state of facts it would be a fraud on the insured to insist upon the forfeiture (Young v. Hunter, 2 Seld. 203). The judgment should be reversed and a new trial ordered, costs to abide the event. Concurring with GROVER WAS PARKER, J. JOEL TIFFANY, State Reporter. Opinion by BOCKES, J. WILLIAM A. HUSTED AND SELAH C. CARLL v. DANIEL H. CRAIG. Contract must be performed entire— When? Where there was a contract to furnish, cut, fit, and put down in defendant's house, the carpets and oil-cloths at a stipulated price, the contract is entire; and to entitle the Plaintiff to recover he must perform the whole contract in a skilful and workmanlike manner. If he fail in respect to one or two of the rooms, he cannot recover as to any. BOCKES, J.-The jury were at liberty to find, from the evidence, that the contract was entire, to furnish and put down the carpets and oil-cloths in the Defendant's house at Peekskill, for the price agreed on. manner. Such contract would carry with it the tacit condition, imposed by law, that the articles selected should be put down in a proper The condition, conceding the contract to have been as above stated, was a very important one, for the value of the property to be delivered depended, in a great degree, on its due execution. The question is whether there was evidence from which the jury could have found that the contract was entire-to furnish and put down the articles stated, in Defendant's rooms. Mr. Husted, one of the Plaintiffs, testified that Mrs. Craig, who made the purchase, stated "that she would make the bill with us, provided we would take them to Peekskill and put them down without expense. I told her that was not customary; however, I said I would do it, if she would be ready for them before our busy season commenced." He also stated that she finally decided on the patterns, and that the bill was $535.33. There was other evidence on this point, but none changing the contract, as given by the Plaintiff himself. That such was the agreement is substantiated by the action of the parties under it. The Plaintiffs immediately obtained the dimensions of the rooms, cut and sewed the carpets, and proceeded to lay them, with the oil-cloth, in the Defendant's house. On this evidence the jury might well have found-indeed, should have found, |