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Viele v. Germania Insurance Co.

Nor is the doctrine laid down by the court in the case at bar within any of the well defined boundaries of estoppel.

Three things are essential to constitute an equitable estoppel: first, misrepresentation or willful silence by one having knowledge; second, the actor, without the means of information, was, by the conduct of the other party, induced to do what he otherwise would not have done; and third, injury from permission to allege the truth; and these three things must appear affirmatively. Com. v. Mott, 10 Barr. 531.

X. The doctrine of agency laid down by the court to the jury, and especially in the sixth instruction, is not the law.

If the party dealing with the agent knew that he exceeded his authority, the principal is not bound. 1 Parsons on Contracts, pp. 40, 41.

It is not within the powers of an agent to waive a forfeiture after the forfeiture. Wall v. Home Ins. Co., 8 Bosw. 597; Sands v. Hill, 42 Barb. 657; North Berwick Co. v. N. E. F. & M. Insurance Company, 52 Me. In this case, the written permission to increase the risk, upon receipt of additional premium, by an agent authorized in express terms to vary or increase the risk by such written permission in his power of attorney, held good. We cite also Forbes v. Agawam Mut. Ins. Co., 8 Cush. 470; Worcester Bank v. Hartford Ins. Co., 11 id. 265; Barrett v. Un. Mut. Ins. Co., 7 id. 175; 6 Gray, 169.

Where the manner of doing a particular act is prescribed, the usual powers are not given. Sanford v. Handy, 23 Wend. 260.

It is expressly agreed in the policy, that, unless the consent to the increase of the risk be in writing, it avoids the policy. This is an agreeement by the plaintiff in effect, that no other consent than in writing will be suffi

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Viele v. Germania Insurance Co.

cient. The plaintiff, holding this policy in his hand, knew that the agent Verder could not give any other than written consent. This is a limitation on the power of the agent, brought home to the plaintiff. He had agreed with the principal, that the agent could give no assent which would bind the principal otherwise than in writing.

Unless, therefore, the consent to such increase was indorsed in writing on the policy, there was no consent to such increase within the terms of the policy. Nothing short of a new contract of insurance or a new agreement, upon a sufficient consideration, to change or alter the old contract, will sustain plaintiff's case.

XI. It is admitted by plaintiff that he increased the risk by putting the building to a more hazardous use. A par ticular premium had been agreed upon as the measure of the existing hazards. To add new hazard without new premium was beyond the power of the agent, because it was in fact giving new insurance without consideration.

Whatever powers might be presumed in the agent, he was known to be an agent, for the purpose of making `insurance for a consideration - the representative of the defendant to dispose of value for value. The assured had as much right to treat the mere gift of insurance by the agent, on an independent piece of property, as binding on his principal, as he had so to treat the pretended consent or agreement of the agent to carry, under the old policy, what he admits is much more hazardous, and entitled to a higher or additional premium.

Where there is no stipulation in the policy as to an increase of risk, such increase, by the act of insured, does not make the policy void as to the original hazards; but the policy in such case does not cover loss from the increased risk. Howard v. Kentucky & Louisana Mutual Ins. Co., 13 B. Mon. 282; 2 Hall (N. Y.) 632; 6 Ad. & El. 75; 1 N. & P. 279.

Viele v. Germania Insurance Co.

The court prohibited defendant from showing that the loss in the case at bar arose from this very increased hazard. It cannot be urged, that the effect of the declarations of the agent was an admission or consent that the risk was not increased by this new use of the building, for it is admitted by the plaintiff that the risk was thereby increased. The fact of the increase is not therefore in issue by the pleadings. However competent the evidence of the parol declarations of the agent might be on the issue whether the risk or hazard was increased, such declarations are clearly incompetent to bind the principal, after the fact of the increase is established, to pay a loss occasioned by such increased hazard. It is established by the evidence that the agents have printed blank policies signed by the president and secretary forwarded to them to fill out, which they are to countersign; that the agents have no power to waive any of the printed conditions in the policies, and that it is not customary for the agents of any companies to waive such printed conditions or forfeitures under them.

It is further proved that the agents have no power to take hazards of the class of this one put into the fourth story of said building, nor to fix the premium therefor, but the same must be referred to the home office.

XII. In the sixth instruction to the jury, the court charge, that, "in the absence of special instructions to the agent of the company known to the party insured, the acts and declarations of the agent must be considered as the acts of the company," if these were "made in the discharge of his duty,” — that is, any acts, all acts. We say, only such acts as are within the usual and customary scope of the business about which he is engaged. But the court made no such qualification, and the jury so understood it.

We further claim that there were special instructions to the defendant's agent, not only in the printed regula

Viele v. Germania Insurance Co.

tions in evidence, but in the contract itself, and known to the plaintiff. The court entirely ignore this view of the law in this case in its instructions.

The continued use of the building for manufacturing of rustic window shades, even after the waiver of a forfeiture prior to such use, can only be consented to in one way by the agent. Hence there was no consent to such use of the building after the forfeiture, even admitting that such forfeiture for the prior use had been waived; and, such use being unauthorized by the company, the keeping of benzine on the premises, in however small quantities, or however necessary or customary in that business, was in violation of the provisions of the policy, and rendered it void.

New York Equitable Insurance Co. v. Langdon (6 Wend. 623), O'Neil v. Buffalo Insurance Co. (3 N. Y. 122), Harper v. Albany Mutual Insurance Co. (17 id. 194), Citizens' Insurance Co. v. McLaughlin (Pennsylvania case), (6 Am. Law Reg. [N. S.] 374), were all cases in which the general business was authorized expressly by the policy, to which the keeping of the prohibited articles was incidental.

The instruction of the court, therefore, upon this point, as well as the modification of the special interrogatories to the jury by the court, numbered two, three and four,

were erroneous.

Putnam & Rogers for the appellee.

From a lengthy printed argument filed by counsel for the appellee, the following points are extracted:

I. The main point urged by defendant on the trial in various forms (as objections to evidence, requests for instructions and exceptions to charge), viz., that a breach of the condition in the policy, avoiding it if the risk be

Viele v. Germania Insurance Co.

increased without the written consent of the insurers, is incapable of being waived by parol, is wholly untenable, because,

1. Although the condition, by its terms, provides that the policy shall be "void" on a breach thereof, its legal effect is simply to render it voidable at the election of the insurers. If they do not elect to avoid it, neither the insured nor third parties could treat it as void, and the insurers could waive the forfeiture and continue the policy in force. This is a rule well settled in respect, to written contracts generally, and especially as to policies of insurance. David v. Hartford Ins. Co., 13 Iowa, 69; Bigler v. N. Y. Central Ins. Co., 22 N. Y. 402; Atlantic Ins. Co. v. Goodall, 35 N. H. 328; Carpenter v. Prov. Wash. Ins. Co., 16 Pet. 495; Clark v. Jones, 1 Denio, 516; Keenan v. Ins. Co., 12 Iowa, 126; Frost v. Saratoga Ins. Co., 5 Denio, 154; 1 Smith Lead. Cases (notes to Dumpor's case); Cartwright v. Gardner, 5 Cush. 273,

281.

2. Although the condition requires the written consent of the insurers to an increase of risk, in order to prevent a breach, the condition itself, or a breach of it, may be waived by parol. Liddle v. Market Fire Ins. Co., 4 Bosw. 179; S. C., 29 N. Y. 184; Sheldon v. Atlantic Ins. Co., 26 id. 460; Ames v. N. Y. Union Ins. Co., 14 id. 253; Boehen v. Ins. Co., 35 id. 131; Goit v. Nat. Prot. Ins. Co., 25 Barb. 189; N. Y. Central Ins. Co. v. Nat. Prot. Ins. Co., 20 id. 468; Peoria Ins. Co. v. Hall, 12 Mich. 202; S. C., Bonney on Insurance, 225, 235; Warner v. Peoria Ins. Co., 14 Wis. 318, 323; Wing v. Harvey, 27 Eng. Law & Eq. 140; North Berwick Co. v. Ins. Co., 52 Me. 336; S. C., 6 Am. Law Reg. (N. S.) 187; Smith v. Gugerty, 4 Barb. Sup. Ct. 614; Rathbone v. City & C. Ins. Co., 31 Coun. 193; 24 U. S. Dig. p. 365, § 148; N. E. Fire & Marine Ins. Co. v. Shettler, 38 Ill. 166; VOL. XXVI. — 5

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