4. INSURANCE: waiver of conditions: estoppel. Viele v. Germania Insurance Co. exclusion of evidence, and the giving and refusing of instructions to the jury. The question is this: Can the breach of the conditions of the policy against the increase of the risk, without the written consent of the insurers, whereby the instrument became forfeited, be waived by parol or by the acts of defendant? The plaintiff admitted the increase of the risk by the use of a part of the building insured for the manufacture of rustic window shades, but sought to avoid the forfeiture, which otherwise would have resulted, by evidence tending to show the consent of the agent of defendant to such use, his acts and declarations recognizing the contract of insurance, after the increase of the risk, and his admission that the building continued to be covered by the policy. This evidence was given to the jury against the objection of defendant, and the court held, in the instructions to the jury, that such facts, if proved, would operate as a waiver of the forfeiture and entitle plaintiff to recover. The following are among the conditions of the policy: * * * "If the above mentioned premises shall be used or occupied so as to increase the risk, or become vacant and unoccupied, or the risk be increased by the erection of adjacent buildings, or by any other means whatever, within the control of the assured, without the assent of the companies indorsed hereon; or if the assured shall keep upon the said premises gunpowder or phosphorus, or petroleum, or rock or earth oils, or benzole, benzine or naptha, or any explosive substance, or shall keep or use upon the said premises camphene, spirits, gas or chemical oils, without written permission on this policy, then, and in every such case, this policy shall be void." The question above stated is fairly presented by the record, and is of very great importance, not only in its VOL. XXVI.—7 Viele v. Germania Insurance Co. relation to this case, but to the business of insurance generally. We have endeavored to give it the careful and patient consideration, aided by the able argument of the counsel for the respective parties, which its importance demands. The policy which is the foundation of this action, though a unilateral contract in form, contains covenants of the assured as well as of the underwriters, and mutual agreements of the parties. Some of these covenants on the part of the assured, are in the nature of warranties, and conditions precedent; others are in the nature of obligations imposed by the conditions limiting or measuring the liability of the underwriters. The covenants of the insurers are mostly, if not all, dependent upon the obligations or covenants of the insured, expressed or implied in the policy. The policy, though subscribed only by the underwiters, is evidence of the contract entered into by both parties, and binds both. 2 Parsons' Maritime Law, 27; Parsons' Mercantile Law, 404. Contracts of this character, binding the obligor upon conditions to be performed by the obligee, but subscribed only by the obligor, are not uncommon. Those for the sale of real estate are often in this form. The language used to express the idea that the obligor is not bound to perform his covenant, until the conditions imposed upon the other party are performed, or, in other words, that the obligor's covenants are dependent, is usually a recital of the conditions which are to be performed by the obligee, following with the declaration that if they are not performed, the instrument shall become void, or forfeited. The policy under consideration is in this form. It declares, that if the risk is increased by means within the control of the assured, without the assent of the underwiters, it "shall be void." By the conditions expressed, the assured is prohibited from increasing the risk, and he obligates himself that it Viele v. Germania Insurance Co. shall not be increased in the manner prohibited. This is his undertaking, and, as we have seen, he is bound thereby as though he had subscribed the policy. This is obvious; but a word or two more may express the idea more clearly. The underwriters obligate themselves to pay a certain sum in case of the loss of the building by fire, with the condition, however, that the risk shall not be increased in the manner prohibited. To this condition the assured assents by the acceptance of the contract, and he thus obligates himself and becomes bound by the policy, that the risk shall not be increased. If he permits it to be increased, his covenants are broken. The condition which he is bound to perform is precedent to the underwriters' covenant. The underwriters are, therefore, not liable on the policy, which ceases to bind them, and to that extent the policy becomes void. Unsound conclusions in the argument of defendant's counsel, result from an improper understanding of the expression "shall be void," used in the condition above quoted from the policy. It is insisted, that the instrument, by force of these words, upon the increase of the risk, became absolutely null and void. The phrases and words used to convey the idea are, "ipso facto void;" "dead;""extinct;"" defunct;""of no effect," etc., etc.; meaning thereby that the instrument has no force or effect, in the sense of these terms when applied to instruments void in law, as the deeds of parties having no legal capacity to contract, or contracts against public policy, etc. But the term "void," as used in the policy, has no such meaning. It simply means that the underwriters, upon the violation of his covenants by the assured, shall cease to be bound by their covenants in the policy; and this is in accordance with the true definition of the word, and its common use in like connections. The policy does not cease to have a legal existence, it is the only compe Viele v. Germania Insurance Co. tent evidence of the contract it embodies, and in truth is not void except so far that the underwriters are no longer bound thereby. Neither will they be discharged therefrom unless they plead the fact that the insured failed to perform his covenants contained in the policy. Their silence would waive the default of the opposite party. The position of defendant's counsel, which is supported by several authorities, is to the effect that upon breach a of the conditions of the policy by the assured, which would defeat recovery thereon, it becomes absolutely void—as it were, dead and that nothing short of a new creation could impart vitality to it. This doctrine is certainly unsound when applied to other contracts; for, on the contrary, after default in the conditions by one party, the other may waive the forfeiture and treat the instrument as of binding force upon himself. No reasons can be given to except policies of insurance from the operation of this rule. The party in default cannot defeat the contract; the party for whose benefit the conditions are introduced may waive the forfeiture. It follows, therefore, that the instrument is forfeited at the option of the innocent party; and if he waives the forfeiture, the contract stands as if no breach had occurred. In Williams v. Bank of the United States, 2 Peters, 102, the doctrine is announced in these words: "If a party to a contract, who is entitled to the benefit of a condition, upon the performance of which his responsibility is to arise, dispenses with, or by any act of his own prevents, the performance, the opposite party is excused from proving a strict compliance with the condition." We conclude, therefore, that the forfeiture of the policy on account of the breaches of the conditions thereof, could have been waived by the defendant, and if waived, the policy continued of the same binding force which it originally possessed. This view is sustained by the following Viele v. Germania Insurance Co. authorities: Keenan v. Mo. State Mut. Ins. Co., 12 Iowa, 126; David v. The Hartford Ins. Co., 13 Iowa, 69; Carpenter v. The Prov. Wash. Ins. Co., 16 Pet. 509; Coursen v. Penn. Ins. Co., 46 Penn. St. 323; Atlantic Ins. Co. v. Goodale, 35 N. H. 328; Frost v. Saratoga Ins. Co., 5 Den. 154; Clark v. Jones, 1 id. 516; Cartwright v. Gardner, 5 Cush. 281; North Berwick Co. v. Ins. Co., 52 Maine, 336; Warner v. Peoria Ins. Co., 14 Wis. 323; Smith v. Gugerty, 4 Barb. S. C. 614; N. E. F. & M. Ins. Co. v. Schettler, 38 Ill. 166; Viall v. Ins. Co., 19 Barb. 440; Ins. Co. v. Stockbower, 26 Penn. St. 199; Buckbee v. Life Ins. Co., 18 Barb. 541; Beal v. Park Ins. Co., 16 Wis. 241; Wing v. Harvey, 27 Eng. Law & Eq. 140; Peoria F. & M. Ins. Co. v. Hall, 12 Mich. 202. IV. We are next led to inquire as to the manner of the 5. — waiver waiver of the forfeiture, whether it must be in writing or may be by parol, and what acts of the defendant will amount to a waiver. need not be in writing. Parol evidence is not admissible to contradict or alter a written instrument, but this rule does not exclude such evidence when adduced to prove that a written contract is discharged, or that the damages for non-performance were waived, or that performance of a part of the contract was dispensed with. 1 Greenleaf's Ev. §§ 302–304; 2 Phil. Ev. (Cowen & Hill's and Edwards' Notes) 692 and note 505; 2 Starkie's Ev. 574; Fleming v. Gilbert, 3 Johns. 528; Merrill. Ithaca & Oswego R. R. Co., 16 Wend. 586. These exceptions to the rule, or rather the rule admitting parol evidence for these purposes, may not apply to specialties; but a contract of insurance need not be by specialty, or even in writing. It seems to be the better opinion that it may be oral only. Parsons' Mercantile Law, 403 and notes; 2 Parsons' Maritime Law, 19 and notes; City of Davenport v. Peoria Ins. Co., 17 Iowa, |