quent insurance, is notice to the company. N. E. Ins. Co. v. Schettler, 38 Ill. 166. But after the policy is issued, mere knowledge by the agent of a subsequent insurance is not notice to the company. Schenck v. Mercer County Ins. Co., 24 N. J. 447; Mellen v. Hamilton Ins. Co., 5 Duer (N. Y.), 101; S. C., 17 N. Y. 609; Ayres v. Hartford Ins. Co., 17 Iowa, 176; Forbes v. Agawam Ins. Co., 9 Cush. (Mass.) 470. If the matter is one with which the agent has no concern, but which requires action by some other officer, notice to the agent is not enough. Sykes v. Perry County Ins. Co., 34 Penn. St. 79; Robinson v. Mercer County Ins. Co., 27 N. J. 134; Mitchell v. Lycoming Ins. Co., 51 Penn. St. 402; Tate v. Citizens' Ins. Co., 13 Gray (Mass.), 79. Where a statement is made a warranty, knowledge of the agent that the statement is false will not aid it. Barteau v. Phoenix Ins. Co., 67 N. Y. (22 Sick.) 595. The contract may provide that the insurers shall not be bound by any knowledge or agreement of the agent not set out in the papers, and they are then exonerated. Shawmut Ins. Co. v. Stevens, 9 Allen (Mass.), 332; Chase v. Hamilton Ins. Co., 20 N. Y. (6 Smith) 52; Loehner v. Home Ins. Co., 17 Mo. 247. He cannot bind the insurers where the contract, if made directly with them, would be invalid, as where the building is already burned. Bentley v. Columbia Ins. Co., 17 N. Y. (3 Smith) 421. He cannot make a contract in which he has himself an interest as insured (id.); nor accept notice of an assignment of his own policy (Ex parte Hennessy, 1 Con. & Law, 559); nor assent to an assignment which the contract requires shall be assented to by the corporation. Stringham v. St. Nicholas Ins. Co., 3 Keyes, 280;* S. C., 4 Abb. Ct. App. 315; Mentz v. Lancaster Ins. Co., 79 Penn. St. 475. Where the premium was to be paid on the delivery of the policy which was to be issued from the home office, a receipt for "insurance" given by the agent when he takes the application will not prove a contract. Linford v. Provincial Ins. Co., 34 Beav. 291. An agent to take applications and issue policies does not have power over the contract, when once made, to waive forfeitures. Harrison v. City Ins. Co., 9 Allen (Mass.), 231; Phœnix Ins. Co. v. Lawrence, 4 Metc. (Ky.) 9; Mersereau v. Phoenix Ins. Co., 66 N. Y. 274. The company may be estopped by his acts, as where he filled up an application, without waiting for information which the applicant had promised, and signed it for the applicant. Wilson v. Conway Ins. Co., 4 R. I. 141. But, where the insured afterward received the policy, with a copy of the application, and the contract provided that by accepting the policy he became responsible for the truth of the statements in the application, a material false statement avoids the policy. Richardson v. Maine Ins. Co., 46 Me. 394. He may consent to a change of title (Illinois Ins.

Co. v. Stanton, 57 Ill. 354), or execute a permit for other insurance (Warner v. Peoria Ins. Co., 14 Wis. 318), or waive a forfeiture on account of change of title by taking a premium and issuing a renewal receipt. Miner v. Phonix Ins. Co., 27 Wis. 693; 9 Am. Rep. 479. The agent of a mutual company cannot waive the requirements of the by-laws adopted for the mutual protection of the members. Mulrey v. Shawmut Ins. Co., 4 Allen (Mass.), 116. Even the president of an insurance company cannot waive the requirement of the by-laws that the premium shall be paid before the policy takes effect. Baxter v. Chelsea Ins. Co., 1 Allen (Mass.), 294. An agent cannot appoint a referee upon a loss. Turner v. Quincy Ins. Co., 109 Mass. 568. Where the company reserves the right of approval, he cannot deprive them of it. N. Y. Union Ins. Co. v. Johnson, 23 Penn. St. 72. A delivery of a new premium note to him by assignees of the policy is not a delivery to the company (Fogg v. Middlesex Ins. Co., 10 Cush. [Mass.] 337), nor can he bind the company to surrender the note on a cancellation of the policy. Marblehead Ins. Co. v. Underwood, 3 Gray (Mass.), 210. In case of such mutual companies, the officials must strictly conform to the by-laws. Evans v. Trimountain Ins. Co., 9 Allen (Mass.), 329; Hale v. Mechanics' Ins. Co., 6 Gray (Mass.), 169. They cannot waive the payment of the premium, or a delivery of the deposit note, when these are made conditions precedent. Brewer v. Chelsea Ins. Co., 14 Gray (Mass.), 203; Baxter v. Chelsea Ins. Co., 1 Allen (Mass.), 294; Belleville Ins. Co. v. Van Winkle, 12 N. J. Eq. 333. But this only applies to stipulations which are made of the essence of the contract. Sheldon v. Com. Ins. Co., 25 Conn. 207. Such are the regulations as to proof of loss. Priest v. Citizens' Ins. Co., 3 Allen (Mass.), 602. But there must be some actual waiver; a statement by the agent that it would be all right, or mere knowledge by him of all the facts, is not enough. Boyle v. Ins. Co., 7 Jones' L. (N. C.) 373; Smith v. Haverhill Ins. Co., 1 Allen (Mass.), 297. An agent with general powers may, by parol, extend the scope of a policy already issued, to new goods (Kennebec Co. v. Augusta Ins. Co., 6 Gray [Mass.], 204), or correct an error in the policy. Warner v. Peoria Ins. Co., 14 Wis. 318. A general agent may waive conditions as to preliminary proofs of loss (Eastern Railroad v. Relief Ins. Co., 105 Mass. 570); the prepayment of the premium (Boehen v. Williamsburgh Ins. Co., 35 N. Y. [8 Tiff.] 131); the requirement that notice be given of notice of other insurance (Carroll v. Charter Oak Ins. Co., 40 Barb. [N. Y.] 292), or that the policy be countersigned by him. Myers v. Keystone Ins. Co., 27 Penn. St. 268. In general the agent may perform his duties by clerks or sub-agents. Kennebec Co.

v. Augusta Ins. Co., 6 Gray (Mass.), 204; Bodine v. Exchange Ins. Co., 51 N. Y. 117; 10 Am. Rep. 566; Eclectic Ins. Co. v. Fahrenkrug, 68 Ill. 463. When the insured was ignorant of the provision making the agent his agent, he may treat him as the agent of the inGates v. Penn. Ins. Co., 17 N. Y. Sup. (10 Hun) 489.

surers.

§3. Duties of agents. Agents of insurance companies owe duties to the principal by whom they are employed, and to the persons who may seek insurance through them. Many of these duties are of such a nature that the law is not invoked to compel their performance. Such are the duties of zeal and industry which the insurers have a right to require, and that reasonable care and discretion in the performance of the business which the person accepting the employment, engages that he has and will bestow. Vol. I, page 240, § 6. But, it has been found generally easier to secure a remedy for failure to furnish qualities of this sort by the termination of the employment, than in any form of legal redress. The agent must use care in the selection of the risks; he must fix the premiums at a remunerative rate; he must advise his company of any changes in the risk and be prepared to advise them with regard to all matters material to their interests. Vol. I, page 241, $7. It is his duty to conform to all instructions given him, and to remit all moneys received. He is not required to perform all the duties in person, but may intrust them to a clerk or sub-agent. Bodine v. Exchange Ins. Co., 51 N. Y. (6 Sick.) 117; 10 Am. Rep. 566. It is his duty to serve his principal alone. He cannot have any interest adverse to that of his principal. If he applies for insurance on his own property, as to that property he is no agent of the company. Bentley v. Columbian Ins. Co., 17 N. Y. (3 Smith) 421; S. C., 19 Barb. 595; N. Y. Central Ins. Co. v. Nat. Protection Ins. Co. 14 N. Y. 85; S. C., 20 Barb. (N. Y.) 468; Utica Ins. Co. v. Toledo Ins. Co., 17 Barb. 132. He cannot act as agent for both parties (id.); nor where he assigns his own policy can he accept notice of the assignment. Ex parte Hennessy, 1 Con. & Law, 559. By agreement of the parties, who are members of a mutual insurance company, the assured may become responsible for the truth of the statements in his application for insurance, and in this sense he will be his own agent. Susquehanna Ins. Co. v. Perrine, 7 W. & S. (Penn.) 348.

§ 4. Liabilities of agents. The agent is liable for a breach of any of the duties which we have considered above which amount to a breach of the implied contract to perform those duties. Vol. I, page 249,1.

A known agent is not responsible to third parties (Ferris v. Kilmer, 48 N. Y. [3 Sick.] 300), unless he expressly assumes such responVOL. IV-5

sibility, which he may do. Wilder v. Cowles, 100 Mass. 487. He cannot be held liable twice, and he must answer to his principal, and his principal to the third person. But this rule only extends to matters within his authority and for which the principal can be held. If the person dealing with him has no remedy against the principal, he may look to the agent himself. Vol. I, page 257, § 3; Booth v. Wonderly, 36 N. J. 250. But a person who has himself knowingly induced the agent to exceed his authority has no remedy against him. Aspinwall v. Torrance, 1 Lans. (N. Y.) 381. So, if he took the risk of the agent's authority on a doubtful point. If an agent to whom was committed an application for insurance should neglect to perfect the contract, he would be so far the agent of the applicant and liable to him for the wrong. Where the agent settled a loss for twenty per cent, without authority, he was held liable to his principal. Rundle v. Moore, 3 Johns. Cas. 36. If he pays a premium after notice not to pay it, he cannot recover it of the insured. Shoemaker v. Smith, 2 Binn. (Penn.) 239. But he is not liable for not procuring the most favorable form of policy. Comber v. Anderson, 1 Camp. 523; Silverthorne v. Gillespie, 9 U. C. 414. It will make no difference on the question of the liability of the agent whether he acted under an express authority given him by his principal, or under an authority implied by law, whether the act was one which the insurer was estopped to deny. In either case the remedy is against the principal.

ARTICLE V.

WARRANTY; REPRESENTATION; CONCEALMENT.

or

Section 1. In general. Insurance is a contract in which the utmost good faith is required on the part of the insured, as it offers to the insured great opportunities for fraud, and as many things which are most material to the contract, either as inducement to the insurer to enter into it, or as objections to it, lie, for all practical purposes, wholly within the knowledge of the insured, the law has required of him a full disclosure. The insurers, as a rule, add to this law stringent provisions in the policies which they issue. Here as elsewhere in insurance, such stipulations will be construed reasonably by the court, the end always held in view being, to give the contract the effect in all material matters which the parties designed. The courts do not favor any construction which will make the validity of the contract turn upon collateral and unimportant matters, unless the parties have so agreed in express terms. Kentucky Ins. Co. v. Southard, 8 B. Monr.

(Ky.) 637. But, whatever may be the particular form of the contract, the party insured will be held to give information in substance correct, as to every material circumstance. It will be enough in the absence of agreement as to the mode, if the information reaches the company in any way, as we have already seen. Ante, 28, art. 4, § 2. If the insured intentionally conceals any material fact, it will deprive him of the advantage of his contract.

§ 2. Warranty. An express warranty is a stipulation inserted in writing on the face of the policy, on the literal truth or fulfillment of which the validity of the entire contract depends. 1 Am. Ins. 577; Wall v. East River Ins. Co., 7 N. Y. (3 Seld.) 370.

As a general rule, any stipulation or condition so inserted becomes a warranty. It is in its nature a condition precedent, and must be strictly complied with. Daniels v. Hudson River Ins. Co., 62 Cush. (Mass.) 416; Ripley v. Etna Ins. Co., 30 N. Y. 136. It in no way alters the effect, that the fact stated or act stipulated for is of no consequence. Barteau v. Phonix Ins. Co., 67 N. Y. (22 Sick.) 595. Nor is the cause of the breach of warranty of any importance (Fitch v. American Ins. Co., 59 N. Y. [14 Sick.] 557; 17 Am. Rep. 372), nor that the thing substituted is more advantageous to the insurer. Wood v. Hartford Ins. Co., 13 Conn. 533. It is enough to make the contract void that it contains a warranty which is broken. Newcastle Ins. Co. v. McMorran, 3 Dowl. P. C. 255; Sayles v. Northwestern Ins. Co., 2 Curt. (U. S.) 610; Witherell v. Maine Ins. Co., 49 Me. 200; Anderson v. Fitzgerald, 4 H. L. Cas. 484. Nor does it help the insured, that the breach of warranty did not cause the loss. Garrett v. Provincial Ins. Co., 20 U. C. 200; Murdock v. Chenango Co. Ins. Co., 2 Comst. 210. The question whether a clause is a warranty does not depend on the words used, but any statement upon the truth of which it appears to be the intention of the parties to make the validity of the contract depend, is a warranty. It is a question of intention. Scales v. Scanlan, 6 Ir. Law, 367; Wheelton v. Hardisty, 8 El. & B. 232; Kingsley v. N. E. Ins. Co., 8 Cush. (Mass.) 393. Thus a fact stated merely by way of description or recital, and not material to the risk, was held not to be a warranty. Schultz v. Merchants' Ins. Co., 57 Mo. 331. Where all the statements of the application were made warranties, but the application covenanted that all matters stated in it were true, so far as material, immaterial statements were held not to be warranties. Garcelon v. Hampden Ins. Co., 50 Me. 580; Washington Ins. Co. v. Haney, 10 Kans. 525. Warranties are, affirmative which allege some fact, or are promissory, which require the performance or omission of some act, during the continuance of the contract. Borradaile v. Hunter, 5 M. & G. 639; Jennings v.