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Waiver.

company to treat the policy as a valid and subsisting contract. Webster v. Phoenix Ins. Co., 36 Wis. 67; s. P. Titus v. Glens Falls Ins. Co., 81 N. Y. 410.

intent, indorses permission for $6,250 treated as an election on the part of the other insurance instead of $8,000, it is estopped to insist upon the defense of invalidity of its policy on account of the existence of the excess of the insurance over the amount so written. Greene v. Equitable Fire Ins. Co., 11 R. I., 434.

248.- When company sends its policy to its soliciting agent for purpose of delivery to the assured, and it is delivered with the knowledge of such agent of the

policy in regard to other insurance is waived or the company is estopped froin insisting upon it as a defense. Brandup v. St. Paul Ins. Co., 10 Ins. L. J. 228; 27 Minn. 393.

244.- Adjuster, after investigation of a loss, made an offer of compromise $375, and at same time objected to the exist-existence of other insurance, condition in ence of other insurance. Offer being declined he went away, and soon after wrote to the assured that he might go on and make out his proofs and the matter would then be taken into consideration. Subsequent correspondence took place re- 249.- Knowledge by the company of specting the proofs, the adjuster demand- the existence of subsequent insurance foling more particularity in what was lowed by any words or acts of the comfurnished, and it was not until six months pany by which the insured is induced to after the offer of settlement was made believe that his contract with it is still that he informed the assured, who mean- subsisting and his property still protected, time had been endeavoring to make the is an estoppel against an assertion that proofs satisfactory, that in addition to the policy is forfeited by reason of no the objections heretofore made the de-notice of such subsequent insurance. fendant would insist upon forfeiture Martin v. Jersey City Ins. Co., 44 N. J. because of the second insurance. Held, L. 273. that evidence justified a finding by the jury of a waiver of the defense founded upon the existence of other insurance. Pennsylvania Fire Ins. Co. v. Kittle, 39 Mich. 51.

245.- Assured was notified by letter that it would be "necessary for him to furnish proofs of loss as required by conditions of the policy," and that the company claimed the policy to be void on ground of existence of other insurance not consented to. Held, that although assured was put to trouble and expense in the furnishing of proofs, company was not thereby estopped from insisting upon the forfeiture caused by the other insurance. Phoenix Ins. Co. v. Stevenson, 8 Ins. L. J. 922; 78 Ky. 150.

246.- Company does not waive de fense of the existence of other insurance by refusal to pay, when demand is made upon other grounds. Galveston Ins. Co. v. Heidenheimer, 9 Ins. L. J. 592 (Tex.)

250.- Mere knowledge by company at time of issue of policy of the existence of other insurance, does not operate as a waiver. Batchelder v. Queen Ins. Co., 12 Ins. L. J. 813; 135 Mass. 449.

251.- A forfeiture founded upon the existence of other insurance is waived by the acts, conduct, and knowledge of an agent authorized to solicit insurance, take applications to deliver policies and to collect premiums. Kitchen v. Hartford Fire Ins. Co., 14 Ins. L. J. 594; 57 Mich. 135. It should be noted that the application in this case made a warranty, contained an unanswered question as to existence of other insurance.

252.- Waiver of defense of existence of other insurance is not established by acts of an adjuster, who has no authority as such to make such waiver. It seems that such a waiver must be evidenced by a written indorsement as required by the terms of the policy. Western Assur. Co. 247.- Company by demanding from v. Doull, 12 Duval, 446 (Can. Sup.); 16 the assured after a loss, plans and specifi- Ins. L. J. 984; rev'g, 6 Russell & G. 478 cations of the building destroyed with (N. S.) Note-The company in this case knowledge of the existence of other insur- had no knowledge of the existence of the ance, is estopped from insisting upon a other insurance until after the loss. Id., forfeiture of the policy on the ground of p. 451. other insurance. Such an act must be

253. After issue of policy a verbal

Other Special Cases.

agreement that other insurance might be of an insurance company, that the intaken, and that a written indorsement sured, subsequent to the issue of the would be made, does not operate as a policy, has placed other insurance on the waiver or estoppel when the other insur- property, is not a waiver of a provision ance is taken without notice to the com- that the policy shall be void if other inpany, or request to make the indorse-surance is procured, unless agreement ment agreed upon. Havens v. Home Ins. thereto be indorsed on the policy,-at Co., 16 Ins. L. J. 713; 111 Ind. 90. least where the notice is not given or

254.- Where an insurance company, knowledge received in a manner requirnotified of additional insurance without ing the company to act by consenting indorsement of consent upon the policy, or refusing to allow other insurance. as required, assumed that it had probably *Golden v. Northern Assur. Co., 49 N. W. waived the condition,-the insured hav- Rep. 246; 46 Minn. 471. ing advised the agent of his intention,— and the company therefore did not notify the insured that it intended to take advantage of the additional insurance, until after it had received from him the information it asked in relation to the extent and value of the loss, taking his time and the services of another,—a jury will be warranted in finding a waiver by the company of such defense. Cleaver v. Traders' Ins. Co., 71 Mich. 414; 15 West. Rep. 525; 41 Balto. Underwriter, 13.

255.— A company may waive a cause of forfeiture and the "double" insurance clause; and where, after a loss, it receives notice of other insurance which would warrant repudiation of liability, but takes steps looking toward adjustment of loss, and puts the insured to inconvenience and expense in furnishing information as a basis for such proposed adjustment, the jury is authorized to find a waiver of forfeiture by the company. *Carpenter v. Continental Ins. Co., 61 Mich. 635; 28 N. W. Rep. 749.

256.- A waiver of forfeiture of an insurance policy because of the breach of a condition against additional insurance may be inferred where the adjuster of the company caused the insured to procure duplicates of his bills of purchase and other data for a basis of payment of loss, after having been fully informed of the additional insurance. *Home Ins. Co. v. Marple, 27 N. East. Rep. 633; 1 Ind. App. 411.

259.- A condition of an insurance policy against additional insurance is not waived by the demand of the company for additional proofs, or by its sending an agent to adjust the loss, although the proofs furnished contain a statement that there is other concurrent insurance greater than the amount which the company has consented to allow, and additional information of excessive insurance is obtained by such agent and communicated to the company, where the proofs also state that nothing has been done to violate the conditions of the policy or render it void. *Antes v. Western Assur. Co., 21 Ins. L. J. 284; 51 N. W. Rep. 7 (Iowa).

259a.- Failure of an insurer for ten weeks after receiving notice of other insurance to make any objection thereto authorizes an inference that it waived a stipulation as to written consent. *Cromwell v. Phænix Ins. Co., 47 Mo. App. 109.

260. Other special cases. The policy contained a provision requiring notice of other insurance to be given to the company and indorsed on the policy, or otherwise acknowledged in writing, and, in default thereof, declaring the policy void. In an action at law (16 Peters, 495, U. S.), the policy was declared void for non-compliance with this provision. A bill in equity was now brought, charging that notice was given, and asking that the company be compelled to make the indorsement, and for other relief. The answer of the company was sworn to by the president, and denied the fact of no

257. The forfeiture of an insurance policy for breach of a condition prohibiting other insurance without the consent tice. Held, that something more than of the company is waived by the latter's the testimony of one witness was required silence after notice of such additional in- to overcome the answer of the president, surance. Id. though he was not in the office at the 258.- Notice or knowledge on the part time the notice was alleged to have been

Other Special Cases.

given, and that the proof of notice ad-sured had ever assented to such restricduced was insufficient. On the question tion, it was held, that the insurers had of the right to equitable relief under such not reserved a right in the policy to decircumstances, the court say, "Suppos-clare it void, on receiving notice of ing the bill to be broad enough in its alle- another insurance on the same property, gations, and the sending of notice of the second insurance proved, and the duty to acknowledge it, if received, to be clear, we might in most cases like this, enforce a discovery of the receipt of it, if coming to hand; and might enjoin the insurers against using, by way of defense, a circumstance caused by their own misconduct. But whether we could go further, and enforce a recovery for the loss on the equity side of this court, need not now be decided." Carpenter v. Providence Washington Ins. Co., 4 How. 185 (U. S.)

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262.- Where a policy provided that "if the insured or his assigns shall hereafter make any other insurance," etc.; held, that the word assigns referred only to one who had acquired an interest in the property insured, and had the policy assigned to him, with the consent of the company. Holbrook v. American Ins. Co., 1 Curtis, 193 (U. S. Cir.)

or to prescribe the terms and amount
for which it should subsequently stand
good. It merely required the insured,
on effecting a subsequent insurance on
the same property, to give notice thereof
with reasonable diligence, and have the
same indorsed on the policy, or other-
wise acknowledged in writing. This the
insured had done, and there being no
clause in the policy other than that in
acknowledgment referred to restricting
the liability of the company to two-thirds
the value of the property, the assured
might recover from defendants their pro-
portion of the full value of the property
destroyed, not exceeding the sum insured.
Westlake v. St. Lawrence County Mut.
Ins. Co., 14 Barb. 206 (N. Y.)
264.- A loss having been paid on a
policy through ignorance that it had be-
come void by a subsequent insurance
contrary to express stipulation in policy,
may be recovered back; nor can the de-
fendant resist the repayment of the
money on the ground that he effected the
insurance as the agent of the real owner
if such agency was not disclosed at time
of procuring the policy. Columbus Ins.
Co. v. Walsh, 18 Mo. 229.

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265. This clause in a policy, “if any subsequent insurance should be made upon the property hereby insured, which 263.- A policy of insurance provided with the sum or sums already insured, that "if assured should thereafter make should, in the opinion of the said Howard any other insurance on the same prop- Fire Insurance Company, amount to an erty, and should not, with all reasonable over-insurance, said company reserve to diligence, give notice thereof, and have themselves the right of canceling this the same indorsed on the policy, or other-policy by paying to the insured the unwise acknowledged by them in writing, expired premium pro rata;" has no referthe policy should be void." The insured subsequently took out another policy in another company for $1,500, and wrote to the defendants, advising them of the same, and received in writing an acknowledgment of his notice, subject to the fol- 266.- There being a clause both in the lowing restriction: "That in event of fire and marine policies requiring notice damage or partial loss, the sum recover- of other insurance to be given with diliable shall not, together with all insurance, gence and indorsed on the policy, alexceed two-thirds of the cash value of the though no policy has yet been issued, and property insured, and at risk, at time of therefore indorsement on the verbal conloss." There being no evidence that as-tract became impossible, yet the assured

ence to insurance on the property, procured without notice to the defendants, and without their assent. Kimball v. Howard Fire Ins. Co., 8 Gray, 33 (Mass.)

Other Special Cases.

must still show that such notice was must not only prove that he sent such given or dispensed with. If with actual notice but that it was actually received. knowledge of such other insurance the Lyons v. Manufacturers' Ins. Co., 28 Up. contract is recognized as still in force, the Can. C. P. 13. 272.- A consent to existing other inproof of notice is dispensed with. And agreeing to transfer the policy for the surance does not prevent assured from benefit of creditors, they becoming re-changing companies so long as he does sponsible for the premium, is such recog-not increase the total amount. Parsons nition. Eureka Ins. Co. v. Robinson, 56 v. Victoria Mut. Ins. Co., 29 Up. Can. Pa. 256. C. P. 22.

267.-"A second insurance, unless by 273.- A condition that notice must consent of the insured, voids his policy." be given to the company of any other inGeorgia Code. The object of this pro-surance effected on the property is not vision being to prevent fraudulent fires, restricted to other insurance effected the policy is void, though the second in- prior to the delivery of the policy in surance is capable of being resisted be- question. Warwick v. Monmouth County cause of misrepresentations or want of Mut. F. Ins. Co., 44 N. J. L. 83. notice of the prior insurance. Lackey v. Georgia Home Ins. Co., 42 Ga. 456.

268.— Statute provided that policy should be void in case of other insurance; that upon giving written notice to the company of the obtaining of other insurance that it should be deemed as assented to unless the company should, within two weeks after the receipt of such notice, notify the party in writing of its dissent. On the 5th instant notice was given of other insurance. The fire broke out at 10 P. M. on the evening of the 19th. Held, that the company had fourteen days ending on and including the 19th day to dissent, and that the loss having occurred within the time limited for the exercise of the option of the company, plaintiff could not recover. McCrea v. Waterloo Mut. Ins. Co., 26 Up. Can. C. P. 431.

273a.- Showing a letter containing information as to other insurance is not a notification in writing as required by the Ontario Act. McIntyre v. East Williams Fire Ins. Co., 18 Ont. 79 (Can.)

274.- Permission for $700 additional insurance applies to $700 other existing insurance, and should not be construed as authorizing $700 subsequent other inBehrens v. Germania Ins. Co., surance. 11 Ins. L. J. 787; 58 Iowa, 26.

275. A statement furnished by a person insured, as to the amount of insurance then existing on the property and inserted in the policy, with a provision that the insurer shall not be liable for a greater proportion of any loss than the amount of the policy bears to the whole sum insured, does not constitute either a representation or a covenant that the insured will keep the property insured at the amount stated. Hoffman v. Manufacturers' Mut. F. Ins. Co., 46 Phila. Leg. Int. 192; 38 Fed. Rep. 487.

276.- Where an insurance policy for $1,000 issued upon property already insured for $3,000 provides that the policy shall be void if other insurance is ob

269.- Statute provided that whenever any notice of the existence of other insurance was received by the company that it should be deemed assented to unless within two weeks after its receipt company should in writing notify the assured of its dissent. Held, that notwithstanding the two weeks may not ex-tained without the company's consent, pire until after a loss, notice must be given before it. Fairv. Niagara District Mut. Ins. Co., 26 Up. Can. C. P. 398.

270.- Under the statute (Me.), R. S. ch. 49, sec. 19, the existence of other insurance, to be effectual as a defense, must be shown to have materially increased the risk. Lindley v. Union Ins. Co., 65 Me. 368. 271.- When statute requires receipt of notice of other insurance, assured

the words "total concurrent insurance $4,000" written upon the policy, but detached from other parts thereof, do not imply a consent to additional insurance. *East Texas F. Ins. Co. v. Blum, 76 Tex. 653; 13 S. W. Rep. 572.

276a.-"Any other contract or agreement for insurance" held by any person "interested," within the meaning of a provision in a policy against other insur

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Subd. VII. Parol contract. Nos. 68, breach of a condition against running a

72a, 74, 75.

Subd. XI.

Nos. 36, 38, 45.

factory at night without special agree

Entirety and divisibility. ment indorsed on the policy. Reardon v.

Subd. XII. Reformation. No. 1.

Section four.

36.

Faneuil Hall Ins. Co., 135 Mass. 121.
3.- The present form limiting the time
to ten o'clock removes the objection to

Subd. II. Misrepresentation. Nos. 23, sustaining a defense founded on a similar

Subd. III. Materiality. No. 18.

Section five.

Subd. X. Assignment. Nos. 84, 129. Section nine. Warranty. Nos. 39, 162, 164, 170, 214.

clause made by the court in German American Ins. Co. v. Steiger, 13 Ins. L. J. 546; 109 Ill. 254.

4.- Provision against ceasing to operate premises (a tannery) will not be violated, if at the time of the fire the use of

Section ten. Agent. Nos. 53, 70, 71, 101, the premises is the same as at the time of 136, 141, 189, 259, 286.

Section eleven. Renewal. No. 6.
Section thirteen. Mortgagor and mort-
gagee. No. 66.

Section nineteen.

Subd. I. Apportionment of loss.

insurance. Lebanon Mut. F. Ins. Co. v. Erb, 2 Cent. Rep. 783; 112 Pa. 149.

5. Neither the previous habit of a person insured to cease the operation of his shoe factory during the dull season, nor the general custom of other manu

Section twenty-four. Waiver. Nos. 64, facturers to do the same thing, can ren72a.

II.

OPERATION OF MANUFAC-
ESTABLISHMENT.

TURING

General rules.

What is covered by the condition.
Temporary suspension.

der nugatory a provision in his policy that it shall be void if the factory ceases operations for more than thirty days. *Stone v. Howard Ins. Co., 11 L. R. A. 771; 27 N. East. Rep. 6; 153 Mass. 475.

6.- A building used as a shoe factory may be considered of itself a manufacturing establishment, and so also may the machinery, furniture, etc., used in the business, where they are insured by

As affected by acts or knowledge of separate policies, providing in statutory

agent.

Waiver.

Cross references.

language that they shall be void if the premises insured are a manufacturing establishment and operations therein cease for more than thirty days, although in strictness the establishment must consist of the building, machinery, etc., combined. Id.

1. General rules. Policy on cotton mills, gear, steam engine, etc., recited that the "buildings were brick, etc.. warmed, etc., worked by the steam engine above mentioned, in tenure of one firm only, standing apart from all other mills, and worked by day only." Held, that the "worked by day only" referred 8.- Machinery and apparatus used in to the mills, and that it was no breach of the business of manufacturing leather the policy that the engine was kept going and morocco, including boiler, engine,

7. What is covered by the condition. A flour mill is a "manufacturing establishment." Carlin v. Western Assurance Co., 12 Ins. L. J. 388; 57 Md. 515.

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