qualify, characterize, or explain it. According to the doctrine of these cases, each transaction is to be characterized by its own facts, without conclusive regard to a fixed interval of time, and with more regard to the question whether the declarations or admissions seem to have been voluntarily and spontaneously made under the immediate influence of the principal transaction, and are so connected with it as to characterize or explain it, and made under such circumstances as to exclude the possibility of a design to mistake the fact. See People v. Vernon, 35 Cal. 49; O'Connor v. Railway Co., 27 Minn. 166, 6 N. W. Rep. 481; Keyser v. Railway Co., 33 N. W. Rep. 867; Pilkenton v. Railway Co., 7 S. W. Rep. 805; Cleveland v. Newsom, 45 Mich. 62, 7 N. W. Rep. 222. See, also, dissenting opinion by Mr. Justice Field in Railroad Co. v. O'Brien, supra, citing the case of Railway Co. v. Coyle, 55 Pa. St. 402. But, under the rule as enunciated in the cases last cited, the declarations of Lighthall are inadmissible, and cannot bind the defendant. The statements were not volunteered, nor were they so closely connected with the principal transaction as to spring spontaneously from it, and characterize it. On the contrary, the declarations of Lighthall were made from his memory of a past event, just as they might and doubtless would have been made if the same inquiries had been made of him weeks or months after they were actually made. Under the evidence, it is obvious that the duties which were delegated to Lighthall could be fully performed without conferring upon him authority to bind the defendant by admissions having reference to matters not depending, but closed and completed before the admissions were made.

But the claim is made by counsel that the declarations and admissions of Lighthall, if not admissible in evidence as a part of the res gesta, were yet competent upon another and independent ground. We quote from the brief of appellant's counsel: "The agent, Lighthall, had charge of that elevator, exclusive control of the business connected therewith. The inquiries were addressed to him while actually employed in that business, by one who had a right to the information sought. The inquiries were made at the earliest possible moment. The agent was

authorized, not by express authority, but in the usual course of business, to give information upon just such points. The inquiries were made within few hours after the wheat was received, and, it is fair to presume, while it remained in his pos session." The difficulty with this proposition is that, in all of its material features, it is wholly without support in the testimony. There is literally no evidence in the record tending to show that Lighthall "had charge of that elevator." Much less is there evidence that he had "exclusive control of the business connected therewith." It is not incompatible with the evidence that Lighthall acted in a purely subordinate capacity, and that other officers and agents of defendant had the general supervision of defendant's business at said elevator. It is certain, at all events, that no testimony was put in the record, tending to show any general agency in Lighthall. The testimony shows that his duties were special and circumscribed. Nor is it true that there is any evidence sustaining the claim of counsel that Lighthall had authority "in the usual course of business," to give information upon "just such points." No evidence was offered showing what the usual course of business was at that elevator or at any elevator. In the absence of proof, the court cannot arbitrarily assume the existence of any particular course of business at any elevator with reference to giving information to the public concerning transactions which are closed and completed before the inquiries are made. The statements in question may have been, and doubtless were, true, as a matter of fact. But, as a court of law, we must determine whether the statements were legally competent as evidence. If they were inadmissable under rules of evidence firmly established, and resting upon well-approved considerations of public policy, and expediency, they must be excluded, whether true or untrue.

For the reasons and upon the grounds already stated, we must hold that it was prejudicial error to admit the evidence against defendant's objections, which were seasonably made thereto. It seems probable that competent evidence to sustain the allegations of the complaint can be readily obtained, and we therefore direct that an order be entered setting aside the verdict, and reversing the judgment herein, and granting a new

trial of the action. The costs of this court will abide the event of the suit. All concur.

BARTHOLOMEW, J., having been of counsel, did not sit; TEM→ PLETON, judge of the first judicial district, sitting by request.

W. E. JOHNSON, Plaintiff and Respondent, v. DAKOTA FIRE & MARINE INSURANCE COMPANY, Defendant and Appellant.

1. Insurance ·

Limitation of Time to Bring Action On.

A stipulation in an insurance policy issued in Dakota territory, upon property therein, which limits the time within which an action may be brought upon the policy to the period of six months from the date of loss, is void. Such stipulation would be upheld at common law, but is void under the statute. § 3582, Comp. Laws.

2. Same

Statements Contained in Application Material. Where a written application signed by the insured declared that "the statements made by me, and answers to questions above given, are true, and a warranty on my part, and are the basis upon which I ask hail insurance by the Dakota Fire & Marine Insurance Company on the crops herein described," and where the policy refers to such language as follows: "Assured's application, of even number and date herewith, on file in the office of the company in Chamberlain, Dakota, is hereby referred to as a part hereof, and is a warranty on the part of the assured, and the basis on which this insurance is written" and where the policy further declares "that any misrepresentation or false statement or concealment of facts in the application, or if the property is or becomes incumbered, shall operate to render the policy void”—held, that such statements, if not intrinsically material, have been made so by the express agreement of the parties, and such agreement must prevail, under Comp. Laws, § 4163, which provides: "A policy may declare that a violation of specified provisions thereof shall avoid it; otherwise the breach of an immaterial provision does not avoid the policy."

3. Same; Same-Error of Soliciting Agent Chargeable to Insurer; How Proved.

Where the agent who solicits insurance, either by his direction or act, makes out an application for insurance incorrectly, notwithstanding all the facts are stated to him truthfully by the applicant, the error or fraud will not defeat the policy, and is chargeable to the insurer, and not to the insured. Held, further, that parol evidence is admissible to show that the application was filled up by the agent, and that

the answers of the applicant were falsified by the agent without the applicant's knowledge.

4. Same; Insured Charged With Notice by Possession of Copy of Application.

Where a policy of insurance, with a copy of the application indorsed thereon, was sent by the company to the insured, and was in the possession of the latter for several months before the loss occurred, held, that the insured was chargeable in law with knowledge of the contents of both the policy and the application, and the circumstance that the assured did not actually read or know the contents of the application, or know that a copy of the application was indorsed on the policy, would make no difference. The paper being his own contract, and in his actual custody, he will be presumed to know all of its contents, even where the copy on the back was not referred to in the body as being indorsed on the back.

5. Same; By Silence After Notice Insured Participates in Agent's Fraud.

Under such circumstances, where a fraud is practiced by the agent upon both the insured and the insurer, and where such fraud would be readily detected by the insured upon reading the copy of the application indorsed on the policy, the insured will be estopped from denying knowledge of the fraud. It was the duty of the insured, upon receiving the policy, to proceed at once to have the same corrected or rescinded. He did not do so. Held, that by such silence, when he should have spoken, the insured constructively became a participant in the original fraud of the agent, and thereby forfeited his rights under the policy. Such policy was defeated in its very inception, and it never attached to the risk which it covered. See Comp. Laws, § 4164.

Same; Same-Forfeiture Waived by Demanding Judgment for Premium Note.

At the time of the service of defendant's answer to the plaintiff's complaint in this action, the defendant had full knowledge of all the facts constituting the grounds of forfeiture of said policy by the plaintiff; and with such knowledge, and by way of counter-claim in its answer defendant seeks to recover from the plaintiff the amount of the premium note given by said plaintiff as a consideration for the issuance of said policy. Held, that pleading such counter-claim operated as a waiver of the forfeiture of the policy. The policy was not void, but was voidable at the option of the insurer. After knowledge of the forfeiture, defendant saw fit to demand judgment for its premium. This was equivalent to an independent action for the premium, and waived the forfeiture. If the answer had not, among other defenses, pleaded a forfeiture which went to the inception of the policy, and which would,

if established, defeat the premium note, the case would have been otherwise.

Same; Failure to Furnish Proofs of Loss.

Where the plaintiff was bound by the terms of his policy, in the event of a loss, to furnish the insurer certain proofs of loss, but wholly failed to furnish the prescribed proofs or any proofs of loss, either within the time limited by the policy, or within a reasonable time thereafter, or at all, held, that, by reason of such default and omission, the plaintiff forfeited his right to recover under the policy.

Same; Same; Waiver of Such Proofs.

A

Evidence to establish a waiver of such forfeiture examined, and held sufficient to constitute a waiver.

(Opinion Filed May 6, 1890.)

PPEAL from district court, Grand Forks county; Hon.
CHARLES F. TEMPLETON, Judge.

Messrs. Dillon & Preston for appellant, cited upon the proposition stated in paragraph 3 of the foregoing syllabus the following cases: Globe Ins. Co. v. Wolf, 95 U. S. 329; Ins. Co. v. Norton, 96 id. 240; Am. Ins. Co. v. McWharter, 11 Ins. Law Journal, 147; Susquehanna Ins. Co. v. Swank, 12 Ins. Law Journal, 625; Ryan v. Worlds Ins. Co., 41 Conn. 68; N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519. As to paragraph No. 4 they cited: Am. Ins. Co. v. Neiberger, 74 Mo. 167; Richardson v. Maine Ins. Co., 46 Me. 394; Smith v. Con. Ins. Co., 43 N. W. 810.

In opposition to the rule declared in paragraph 6 they cited: Smith v. State Ins. Co., 21 N. W. 145; May on Ins. 507; Davidson v. Young, 38 Ill. 152; Flower v. Elwood, 66 Ill. 447; Powell v. Rogers, 105 Ill. 318; N. W. Ins. Co. v. Amenman, 10 N. E. 225; Shimp v. Cedar Rapids Ins. Co. 16 N. W. 229.

J. H. Bosard (P. J. McLaughlin, of counsel,) for respondent, cited, in opposition to the rule declared in paragraph 2 of the syllabus, the following: Cont. Ins. Co. v. Rogers, 119 Ill. 474, (S. C. 59 Am. Rep. 810); Alabama, etc. Co. v. Johnson, 2 So. Rep. 125; May on Ins. §§ 181-4; Phenix Ins. Co. vs. Raddin, 120 U. S. 183; Moulor v. Am. Ins. Co., 111 U. S. 335; Southern Ins. Co. v. Booker, 24 Am. Rep. 344; May on Ins. §§ 156, 162-5; Car