ing right, but until the contract is consummated, the company has no rights which are susceptible of waiver, nor can any condition be properly said to be modified or stricken from a policy until there is a policy; that is, until after the terms of the contract have been agreed upon and the policy issued. Clearly, the clause in question was intended as a limitation upon the powers of agents to waive or modify the terms of a policy after it had been issued, and not upon their power to agree upon and settle the terms of the policy prior to its issue.

Whipple and Smiley being general agents, could they employ Milne to perform the duties of their agency, and make his acts binding on the defendant? The facts are, that Whipple was a gentleman advanced in years, who gave but little attention to the duties of the agency. Smiley was an employee in the Alton National Bank, and during banking hours his duties usually required his attendance at the bank. Under these circumstances, Milne was employed by the firm to assist them in their insurance business. He did the general office-work, kept the books of the firm, conducted their correspondence, received the premiums paid at the office, and to some extent collected those which were paid elsewhere; filled up policies, all except countersigning; and the evidence tends to show that whenever he could he acted as solicitor for the firm in procuring insurance, and that when he had negotiated a policy with any particular person, and expected him to call for it, he would so inform the firm, and a blank policy duly countersigned would be left with him, to be by him filled up and delivered. The employment of Milne by the firm, and the general nature of his duties, seem to have been known to the defendant, as the defendant's state agent is shown to have frequently visited the office of the firm while Milne was in its employ.

As to whether, under these circumstances, general agents can delegate their authority so as to bind their principal by the acts of their subagent, the authorities are not altogether agreed. The position taken by defendant's counsel which is entitled to most consideration is, that agents to whom is committed duties which require the exercise of judgment and discretion cannot delegate their authority, for the reason that such agency is, from its nature, personal, the principal having contracted for the personal skill and judgment of the agents selected. In support of this view, we are cited to a very able discussion in McClure v. Mississippi Valley Ins. Co., 4 Mo. App.

148, where it is held that a general agent, with power to issue policies of insurance, the signing and delivery of which involve passing upon the character of risks, and consequently call for the exercise of discretion and judgment, cannot delegate his powers as such agent to another.

Without expressing any dissent from the doctrine of that decision and others which take a similar view, we are of the opinion that the present case falls within a quite different rule. In that case, the question was, whether any valid policy had been issued by the defendant to the plaintiff. The acts there challenged as having been performed by virtue of a delegated authority embraced the passing upon the character and desirability of the risk, and its acceptance on behalf of the insurer,acts clearly involving the exercise of discretion and judgment. In the present case, no question is raised as to the validity of the policy as issued. No fault is found with the character of the risk, nor is the validity of Milne's acts by which it was accepted and the policy executed in any way challenged. The defendant received the premium, and keeps it, and proceeds upon the assumption that the policy was properly issued, and correctly embraces the terms of a valid contract of insurance with the complainant. The defense is based solely upon an alleged breach of one of the conditions of the policy, and the question raised involving a consideration of Milne's authority to bind the defendant relates merely to the clause as to the occupancy of the buildings which he agreed to insert in the policy. We have to determine, then, whether Whipple and Smiley could properly delegate their authority to Milne to that extent only, no other question as to the delegation of their authority being in issue. We are unable to see that this was a matter specially calling for the exercise of discretion or judgment. The complainant's buildings, so far as the question of non-occupancy was concerned, differed in no material respect from all other buildings similarly situated.

The case comes more nearly within the principle of Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117; 10 Am. Rep. 566. There the original policy provided that no insurance, original or continued, should be binding until the actual payment of the premium. The defense was based upon the non-payment of the premium upon a renewal receipt, and the plaintiff's claim was that the clerk of the insurance agent who delivered to him the receipt waived the prepayment of the premium. The only question was as to the authority of the clerk to make

such waiver. He was the son of the insurance agent, and had for several years been assisting his father in his insurance business, among other things by procuring policies and renewal receipts from the company, and delivering them to the insured. In various cases, including the one in question, he had, with the presumed consent and authority of his father, waived the prepayment of premiums. Such delegation of authority was held to be proper, upon the principle that the act of the clerk was the act of the agent, binding on the company just as effectually as if it were done by the agent in person. The doctrine of the foregoing case was cited with approval by this court in Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill. 463; see also Lingenfelter v. Phoenix Ins. Co., 19 Mo. App. 252.

In the present case the act of Milne by which he agreed to insert in the policy the clause in question relating to the nonoccupancy of the buildings may be regarded as the act of Whipple and Smiley, and therefore binding on the company the same as though they had made the agreement themselves. The fact that they knew nothing of the agreement, and gave no actual assent to it, is immaterial, so long as it was within the apparent purview of their powers as agents, and also within the apparent purview of Milne's employment as their clerk and assistant.

But there is another and we think a conclusive reason why the agreement of Milne must be held to be binding on the defendant. The defendant is an insurance company organized under the laws of the state of New York, and doing business by its agents in this state under and by virtue of our statute in relation to such companies. The twenty-third section of the statute in relation to fire insurance companies, after fixing and defining the terms and conditions upon which insurance companies organized under the laws of other states may take risks or transact insurance business by their agent or agents in this state, provides as follows: "The term 'agent,' or agents,' used in this section, shall include an acknowledged agent, surveyor, broker, or any other person or persons who shall, in any manner, aid in transacting the insurance business of any insurance company not incorporated by the laws of this state": 1 Starr and Curtis's Stats. 1322. The general assembly, having power to impose upon foreign insurance companies coming into this state to do business such reasonable terms and conditions as it saw fit, had an undoubted

right to make such companies responsible, not only for the acts of those who are in fact their agents, but of those who assume to act as their agents and in fact aid them in the transaction of their insurance business. That such was the intention of the statute seems too plain to admit of doubt. We placed this construction upon said statute in People v. People's Ins. Exchange, 126 Ill. 466.

Similar statutes have been upheld in other states, and have there received the same construction we are disposed to place upon our own. A statute of Wisconsin provided that whoover solicited insurance on behalf of an insurance company, or made any contract of insurance, or in any manner aided or assisted in making such contract, or transacted any business for the company, should be held to be an agent of such company to all intents and purposes. In Schomer v. Hekla Fire Ins. Co., 50 Wis. 575, the court, in construing said statute, say: "The obvious intention of the legislature is to make an insurance company responsible for the acts of the person who assumes really to represent and act for it in these particulars, and to change the rule of law that the insured must at his peril know whether the person with whom he is dealing has the power he assumes to exercise, or is acting within the scope of his authority." Said statute was upheld, and the same construction adhered to in Knox v. Lycoming Fire Ins. Co., 50 Wis. 671; Alkan v. New Hampshire Ins. Co., 53 Id. 136; and Body v. Hartford Fire Ins. Co., 63 Id. 157.

A statute of Iowa provided that any person who should solicit insurance or procure applications therefor should be held to be the soliciting agent of the insurance company. In Bennett v. Council Bluffs Ins. Co., 70 Iowa, 600, it appeared that an agent of the company who had authority to solicit insurance and issue policies sent his clerk to solicit a risk and take an application, and the clerk knew that there was other insurance on the property, but the agent, who was ignorant of such other insurance, issued a policy and collected the premium, and it was held that the company was bound by the knowledge of the agent's clerk, who, for the purposes of that policy, must, by virtue of the provisions of the statute, be regarded as the company's soliciting agent.

An attempt is made to distinguish our statute from those considered and construed in the cases above cited, because of the use of the word "acknowledged" in the phrase "acknowledged agent, surveyor, broker, or any other person or persons

AM. ST. REP., VOL. XI.-9

who shall in any manner aid in transacting the insurance business of any insurance company," etc. The contention is, that the word "acknowledged " qualifies the entire clause, and that the statute therefore applies to no person who is not acknowledged by the insurance company as having authority to act for it in its insurance business. It is sufficient to say that the construction contended for is so forced and unnatural as not to possess even the virtue of plausibility. It would render the statute impotent and unmeaning by limiting its operation to those who would be agents of insurance companies without it. The manifest intention was to make such companies responsible for the acts, not only of its acknowledged agents, etc., but also of all other persons who in any manner aid in the transaction of their insurance business. Nor do we see anything inequitable or oppressive in such provision. Doubtless the mere assumption of authority to act for an insurance company will not of itself charge the company with responsibility for the acts of the assumed agent. The company must in some way avail itself of such acts, so that the person performing them may be said to aid the company in its insurance business. But after a company has availed itself of the acts of an assumed agent, and thus adopted them as its own, there is nothing oppressive in assuming, as against such company, the existence of the relation of principal and agent, and charging the company with responsibility for such acts.

We are of the opinion that the circuit court properly decreed a reformation of the policy, and the property insured having been destroyed by fire, it was also proper for the court to enter a decree in favor of the complainant for the amount of his loss. We find no error in the record, and the judgment of the appellate court will therefore be affirmed.

INSURANCE - Proofs of Loss. —The condition is regarded as waived as to proof of loss, where the company fails to make objection within reasonable time, or where the refusal to pay is based upon other grounds: Firemen's lux Co. v. Floss, 67 Md. 403; 1 Am. St. Rep. 398, and note 405, 406; and compare Central City ins. Co. v. Oates, 86 Ala. 528, ante, p. 67, and note.

INSURANCE AGENTS. An insurance company has power to restrict the powers and duties of its agents as it may choose; and when their authority is expressly limited and restricted by the policy which the assured receives, such restrictions and limitations must be regarded as binding upon him: Cleaver v. Traders' Ins. Co., 65 Mich. 527; 8 Am. St. Rep. 908, and note 913.