versed, and the cause remanded, with directions to sustain the motion.

IRWIN, J., who presided in the court below, not sitting. All the other Justices concurring.

(16 Okl. 59)

GISH et al. v. INSURANCE CO. OF NORTII AMERICA.*

(Supreme Court of Oklahoma. Sept. 7, 1905.] 1. INSURANCE-IRON-SAFE CLAUSE-VALIDITY.

A stipulation in a fire insurance policy that the insured shall make and keep inventories and books, and keep them in a fireproof safe in some place not exposed to fire which would ignite or destroy the building in which the property insured is situated, and in cases of loss to produce such books and inventories for the inspection of the insurer, and in the event of failure on the part of the insured to produce such books and inventories for the inspection of the insurer that the entire policy shall be null and void, is a reasonable and competent provision to insert in and attach to the policy. [Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 853.]

2. EVIDENCE-PAROL EVIDENCE.

That a contract in writing, if its terms are free from doubt and ambiguity, must be permitted to speak for itself, and cannot by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts; and this principle is applicable to contracts of insurance.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1818-1824.]

3. INSURANCE CONDITIONS OF POLICY WAIVER.

It is reasonable and competent for insurance companies to provide in their policies that no officer, agent, or other representative of the company shall have the power to waive such stipulation of warranty, unless indorsed thereon or added thereto.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 952, 963.] 4. SAME-WAIVER OF CONDITIONS.

Where an insurance policy contains such a stipulation of warranty, and provides that no officer, agent, or other representative of the company shall have the power to waive any condition or provision of the policy, unless such waiver shall be written upon or attached thereto, such limited grant of authority is the measure of their power.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28. Insurance, § 952.]

5. SAME.

The rules announced in the case of Liverpool & London & Globe Ins. Co. v. T. M. Richardson Lumber Co., reported in 69 Pac. 935. 11 Okl. 585, approved and followed. 6. SAME-WAIVER OF CONDITIONS.

It is always open for the insured to show a waiver of the conditions contained in a policy of fire insurance, or a course of conduct on the part of the insurer which gave him just and reasonable ground to infer that a forfeiture would not be exacted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1026, 1027.]

7. SAME.

Where a waiver of the conditions in a fire insurance policy is relied upon by the insured, he must show that the insurer, with knowledge of the facts that occasioned the forfeiture, dispensed with the observance of the condition that, where the waiver relied on is the act of *Rehearing denied January 12, 1907.

an agent, it must be shown either that the agent had express authority from the insurer to make the waiver, or that the insurer subsequently, with knowledge of the facts, ratified the action of the agent.

[Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 948, 1026, 1027.] 8. SAME-PROOF OF WAIVER.

A waiver may be established by proof of such facts and circumstances as would reasonably result in that conclusion.

[Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1026, 1028.] 9. SAME EVIDENCE.

Under the facts as disclosed by the record in this case, held, that the question of waiver was a question of fact, to be determined by the jury under proper instructions, and that the court erred in sustaining the demurrer to the evidence and in taking the case from the jury.

10. SAME.

The case of Liverpool & London & Globe Ins. Co. v. T. M. Richardson Lumber Co. distinguished. 69 Pac. 935, 11 Okl. 585.

(Syllabus by the Court.)

Error from District Court, Caddo County; before Justice B. F. Burwell.

Action by Moses N. Gish and others against the Insurance Company of North America. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

A. J. Morris, for plaintiffs in error. Glitsch & Glitsch and H. H. Howard, for defendant in error.

BEAUCHAMP, J. On the 9th day of October, 1903, the plaintiffs in error commenced this action against the defendant in error in the probate court of Caddo county to recover the sum of $500, as due under the terms of a policy of fire insurance that had been issued by the defendant in error to the plaintiffs in error on the 1st day of July, 1903, on a stock of furniture situated in Anadarko, and which was, on the 29th day of July, 1903, destroyed by fire. After issues joined, trial was had in the probate court, resulting in a judgment for the plaintiffs in the sum of $500, the amount claimed. The cause was appealed to the district court of Caddo county, and on the 24th day of May, 1904, a jury was impaneled, and after the plaintiffs had introduced their evidence and rested, the defendant demurred to the evidence. The demurrer was by the court sustained, and judgment rendered against the plaintiffs for costs. A motion for a new trial was heard and overruled, and exceptions saved. The plaintiffs bring the case here upon petition in error and case made for review.

Attached to the policy is a slip containing a warranty that the plaintiffs should make an itemized inventory of the stock insured at least once in each calendar year, and that, unless such inventory had been taken within 12 months prior to the date of the policy, the same should be taken in detail within 30 days after its date, or that the policy should be void; and that the insured should keep a set of books which

should clearly and plainly present a complete record of the business transacted, including all purchases, sales, and shipments of said stock, both for cash and credit, from the date of the inventory provided for and during the continuance of the policy, and that the plaintiffs should keep such books and inventory, and also the last preceding inventory, securely locked in a fireproof safe at night, in some place not exposed to fire which would ignite or destroy the building in which the stock insured is situated, and in case of loss that they should produce such books and invoices for the inspection of the defendant. In the event of failure on the part of the insured to keep and produce such books and invoices for the inspection of defendant, the entire policy should become null and void, and such failure should constitute a perpetual bar to any recovery thereon. At the time that the policy was issued, the firm of Perry & Farmer were the local agents for the defendant at Anadarko, with power to receive applications for insurance against loss or damage by fire, and fix rates of premiums, to receive moneys, and to countersign and to issue policies signed by the president and attested by the secretary of defendant, and to attend to such other duties as pertain to the business of the agency, subject to the rules and regulations of the company, and to such instructions as may from time to time be given by defendant's officers and managers. In the petition plaintiffs allege that they accepted the policy with the express understanding that the safe clause should not be binding upon them. The books and inventories were not kept in a fireproof safe by plaintiffs, as required by the terms of the policy, but were kept in a desk in the building with the stock of furniture, and were destroyed with the stock of furniture. The plaintiffs at the trial offered to prove by Mr. Gish, while on the stand as a witness, that at the time the policy was issued defendant's agents, Perry & Farmer, visited and inspected the goods insured, and at the time they issued the policy knew that the plaintiffs had no fireproof safe, and knew that they would not keep the books and papers in a fireproof safe, and that plaintiffs were informed by Perry & Farmer that the fireproof safe clause would not be insisted upon by the defendant; and with this understanding the policy was accepted by the plaintiffs, which evidence was by the court, over the objection and exception of the defendant, excluded.

It is insisted by plaintiffs that, as the policy was issued, delivered, and the premium accepted with knowledge by defendant's agents, facts existed which would constitute a breach of the conditions of the policy, and that they assured the plaintiffs that such a breach would not be insisted upon; that the defendant cannot, since the fire occured, take advantage of such breach,

and that the court erred in excluding the evidence offered.

The policy contains the further provision: "And no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of this agreement indorsed hereon or added hereto." The clear purpose of this evidence was to show that the contract expressed in the policy was not in reality the contract as made, and to receive such evidence for the purpose of raising an estoppel would be a mere evasion of the rule excluding parol evidence when offered to alter or change the terms of a written contract. The defendant cannot be estopped from making the defense that the contract as set forth in the policy sued on is its contract, or that the plaintiffs have violated it in this particular, which are made conditions to their right under it, on the ground of negotiations and transactions occurring prior to and at the time the contract was entered into, unless the plaintiffs are permitted to show by parol testimony that the contract, as put in writing does not truly set forth and express the intentions of the parties, as an estoppel could not arise except upon proof of a contract different from that contained in the policy. By the express terms of the policy, the authority of Perry & Farmer, so far as to waive any provision or condition of the policy, was limited, and they had no authority to waive any such provisions or conditions so as to bind the defendant except in writing, and the plaintiffs were bound to know what their contract contained, and to see that its terms were complied with. It is not ambiguous in its terms, but plain and explicit, so that parol evidence could not be resorted to for the purpose of explaining its meaning, and under such circumstances the parties have made it. The stipulated warranty contained in the policy to keep books and inventories, and to produce them in case of loss, was a reasonable and competent provision to insert or attach to the policy, and it was reasonable and competent for the defendant, to provide in its policy that no officer, agent,

other representative of the company should have power to waive such warranty, unless indorsed thereon or attached thereto, and Perry & Farmer had no authority or power to waive such condition or provision of the policy, except such waiver be written and attached to the policy. The rule here expressed is in conformity with the rule laid down in the well-considered case of Liverpool & L. & G. Ins. Co. v. Richardson Lumber Co., in the able and carefully prepared opinion by Associate Justice Hainer, 11 Okl. 585, 69 Pac. 935, and with which we are still satisfied. The trial court committed no error in excluding this testimony.

The answer of the defendant sets forth

that, shortly after the discovery of the fire, one of its adjusters went upon the ground for the purpose of inspecting and ascertaining the cause of the fire and the extent of the loss sustained by plaintiffs, and in the course of that investigation first ascertained that the warranty to keep the books and inventories in a fireproof safe, and to produce them in case of loss, had been broken and violated by the plaintiffs, and that the books had been destroyed with the stock of furniture; and Gish testified that the adjuster arrived on the 4th day of August, and that he was informed of these facts immediately upon his arrival, and that he (Gish) paid the premium to Perry & Farmer on that day, and the register or record kept by l'erry & Farmer shows that the premium was paid by plaintiffs August 4th, and Mr. Perry testified that he was informed, a day or two after the fire occurred, that plaintiffs' books were burned in the fire; that notice of loss was sent to the defendant by Perry & Farmer; that the premium for the policy was remitted to the defendant on the 10th day of September, 1903, and that the money was never returned, and the company never gave them any instructions to return, or offer to return, the money; and it was admitted by counsel for defendant that the money was received by defendant some time after the 10th of September, and there is no claim that defendant has returned the money, or offered to return it.

On the 4th day of August, on the arrival of defendant's adjuster at Anadarko, Gish had a conversation with him, in which he informed him of the facts with reference to the books and inventories, and on the trial plaintiffs sought to prove by Gish that the adjuster, with full knowledge that the books and inventories had not been kept in a fireproof safe, and that they were destroyed with the furniture, required plaintiffs, at considerable trouble and expense, to furnish duplicate invoices of all goods purchased since the 1st of February, 1903, until the fire occurred, and that the adjuster made no objection that plaintiffs' books and invoices were destroyed by fire, and made no claim of a forfeiture. The defendant objected to any evidence to show a waiver by reason of any acts of the adjuster on August 4th, the day he arrived at Anadarko, for the reason that the witness admitted he had signed an instrument purported to be a nonwaiver agreement, which objection was by the court sustained, and exceptions saved by plaintiffs. Whereupon the plaintiffs offered to show by the witness that the paper called the nonwaiver agreement, and which is set up in defendant's answer, was signed by the witness Gish upon the representations and statements of the adjuster that said instrument was nothing more than a privilege granted by the plaintiffs to the defendant to investigate the loss, and that he (Gish) signed the

same relying upon the representations and statements of the adjuster; that the instrument was presented to him by the adjuster after dark, and when it would have been difficult for him to read the same, and, relying on the representations and statements made by the adjuster, he signed the same. This evidence, upon the objection of the defendant, was also excluded by the court over the objection and exception of the plaintiffs, and of which ruling of the court plaintiffs in error complain..

It is not questioned but that the loss was an honest one. The evidence shows that it originated in a building different from that in which plaintiffs' goods were situated, and the value of the furniture destroyed and covered by the policy was about $4,200. The defendant admitted upon the trial that, if the plaintiffs were entitled to recover at all, they were entitled to recover the full face of the policy; so that the question now is, did the defendant, by its conduct and the conduct of its agents, waive the right to insist upon a forfeiture of the contract of insurance by reason of the plaintiffs having failed to comply with the terms of the warranty?

In the case of Insurance Co. v. Smith (Miss.) 30 South. 362, being a case in which the facts are very similar to this case, the Supreme Court of Mississippi held: "Where the policy issued by an insurance company on certain fixtures provided that it should be void if the insured's interest in the property should be otherwise than unconditional, the acceptance and holding of the premium on the policy by the company's local agents, of which the company's special agent and adjuster had knowledge, a week after the property, which was mortgaged, had burned, are a waiver of the condition."

We quote from the syllabus in the case of Johnson v. Massachusetts Ben. Ass'n (Kan. App.) 59 Pac. 669: "Any untrue statement in an application for insurance, when made a part of the policy, and by the insured warranted to be true, avoids the policy of insurance, regardless of the question of its materiality; yet the insurance company may by its conduct waive its right to insist upon such forfeiture. The acceptance and retention of money in payment of premiums after the insurance company has knowledge of all the facts constitute such waiver."

In the case of Phoenix Ins. Co. v. Boyer (Ind. App.) 27 N. E. 628, it is said: “An insurance company accepted payment of the premium due after notice that the conditions of the policy had been broken by reason of the building becoming vacant. Afterwards the insured requested the company to cancel the policy, and return the unearned premium, but the company refused to do so. Held, that it had waived the forfeiture, and was liable for a loss afterwards occurring."

In the case of Bloom v. State Ins. Co.

(Iowa) 62 N. W. 810, it is said: "The viola

be void if any suit be commenced for the enforcement of any incumbrance on the insured property without the written consent of the secretary of the company is waived where the company, with full knowledge of such violation, enforces the payment of a premium note by judicial procedure."

In the case of McKinney v. German Mut. Fire Ins. Co. (Wis.) 62 N. W. 413, 46 Am. St. Rep. 861, it is said: "An insurance company, which, after notice that the construction of an insured building violates a condition in its policy, receives premiums on the policy, waives the conditions."

In the case of German Ins. Co. v. Shader (Neb.) 93 N. W. 972, 60 L. R. A. 918, it is said: "Receiving the premium after destruction of all the insured property, so that nothing remains to which insurance might attach waives a provision that the insurer shall not be liable for a loss occurring before the payment of the premium. Where an agent who has general power to receive and collect premiums accepts a premium after loss, and the insurer desires to repudiate such act, it should return or tender the money to the insured. Mere return to the agent, with instructions which are not executed, will not suffice."

In the case of Marthinson v. N. B. Mer. Ins. Co. (Mich.) 31 N. W. 291, it is said: "If an insurance company is informed by the examination of the assured by the adjusters before a notary public, soon after the loss, of certain acts constituting breaches of war ranty, but does not then claim a forfeiture, but allows successive proofs of loss to be made, to which, one after the other, it objects on various grounds of form, such action of the company will constitute a waiver of forfeiture for the breaches of warranty referred to, notwithstanding in making objections to the proofs the company says that 'it waives none of its rights and defenses' under the policy, but expressly reserves each and every one.""

In the case of Titus v. Insurance Co., 81 N. Y. 410, the Court of Appeals held: "It may be asserted broadly that if by any negotiations or transactions with the insured after knowledge of the forfeiture it recognized the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some expense, the forfeiture is, as a matter of law, waived, and it is now settled in this court, after some difference of opinion, that such waiver need not be based upon any new agreement or estoppel."

In the case of Oshkosh Gaslight Co. et al. v. Germania Fire Ins. Co. (Wis.) 37 N. W. 819, it is said: "Where, after proof of loss, an adjuster, knowing of a breach of condition by assured, continues to recognize the policy as valid, and attempts to adjust the loss, there

forfeiture is waived." Also, the same court in the case of Dick et al. v. Eq. Fire & Marine Ins. Co. (Wis.) 65 N. W. 742, said: "Where an insurance company has knowledge of facts which show that a condition of the policy has been broken, the act of its adjuster, sent to ascertain the amount of the loss, in requiring the assured, at some trouble and cost, to supplement his proofs of loss by furnishing a 'carpenter's estimate' of the damage, estops the company from declaring such breach to be a forfeiture of the policy."

In the case of Roberts, Willis & Talor Co. et al. v. Sun Mut. Ins. Co. (Tex. Civ. App.) 35 S. W. 955, it is said: "An insurance agent cannot waive the requirements of the ironsafe clause' when that authority is expressly withheld from him by the terms of the policy. (2) Where an adjuster, after learning of the destruction of the insured's itemized inventory, ledger, and scratchbook, refused to proceed with the investigation of the loss until insured agreed that futher examination into the loss should be taken as any waiver of any defense the companies may have by reason of the breach of warranty as contained in the iron-safe clause, we having lost our detailed inventory,' there was evidence from which the jury might infer a waiver of the requirements to produce the books other than the detailed inventory; particularly as the adjuster, after making an estimate of the loss pursuant to said agreement, applied to plaintiffs, to whom the policies had been assigned, for duplicate invoices of purchases of goods. (3) The limitation in a policy of the power of an agent to waive certain conditions in the policy does not apply to the adjuster after the policy has become a demand against the insurer."

In the case of Brown v. State Ins. Co. (10wa) 38 N. W. 135, 7 Am. St. Rep. 495. it is said: "Under an insurance policy requiring the insured to keep his books of invoice secure from fire, where he fails to do so the company waives its right to insist upon his failure as a forfeiture of the policy by requiring the insured after the fire to incur the expense and trouble of obtaining bills and vouchers of all his goods received for several years before." And the same court in the case of Corson v. Anchor Mut. Ins. Co. (Iowa) 85 N. W. 806, said: "(1) Where a policy provided that it should be void if the assured failed to keep a set of books in a fireproof safe, the failure to do so was waived by a statement of the adjuster that the assured would have to get duplicates for certain invoices in order to make required proof of loss, whereby assured was induced, at considerable expense and trouble, to procure such duplicate copies. (2) Where a policy provided that it should be void if assured failed to keep a certain set of books in a fireproof safe, a waiver of such failure also operates to excuse the production

of such books in an action on the policy. (63) Where, as a preliminary to adjustment of a loss under a policy, assured signed an agree ment stipulating that nothing the adjuster might do, say, or write should be construed, as waiving any defense of the company as to conditions or requirements of the policy, he was not thereby precluded from pleading a waiver by the adjuster of a clause in the policy, since the adjuster, having power to make such waiver, could not deprive himself of that power by his own act."

In the case of German Ins. Co., of Freeport. Ill., v. Allen (Kan. Sup.) 77 Pac. 529, it is said: "Where the adjuster of a fire insurance company after a loss, learns of a noncompliance by the insured with the provision of the policy with regard to keeping books, and, instead of declaring a forfeiture therefor, negotiates with the insured for the making of other and better proofs, extends the time to make proofs, and requires the insured. at some trouble and expense, to submit to an examination under oath as to the fire and the property destroyed, the company will be deemed to have waived the right of forfeiture." Insurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335, and many more authorities in the state courts, might be cited, but we think it unnecessary.

In the case of Phoenix Ins. Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. 644, the Supreme Court of the United States, in an opinion of the court by Mr. Justice Gray, says: "It follows that the only question upon the instructions of the court to the jury which is open to the defendant on this bill of exceptions is whether, if insurers accept payment of a premium after they know that there has been a breach of a condition of the policy, their acceptance of the premium is a waiver of the right to avoid the policy for that breach. Upon principle and authority, there can be no doubt that it is. To hold otherwise would be to maintain that the contract of insurance requires good faith of the assured only, and not of the insurers, and to permit insurers, knowing all the facts, to continue to receive new benefits from the contract while they decline to bear its burdens."

We quote from the syllabus in the case of Insurance Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387: "A. took out a policy of insurance upon the life of her husband. The premium was payable annually on the first day of November. The policy stipulated for the payment of the amount of the insurance within sixty days after due notice and proof of the death of the insured, subject, however, to certain express conditions. One of these conditions provided that, if the premiums were not paid on or before the days mentioned for their payment, the company should not be liable for the sum insured, or any part of it. and that the policy should cease and determine. ✶ ✶✶ The policy declared that the

agents of the company were not authorized to make, alter, or discharge contracts, or waive forfeitures, but the company, notwithstanding this provision, sent renewal receipts, signed by its secretary, and their use. when countersigned by its local manager and cashier, was subject entirely to the judgment of its local agent. It was his habit to give such receipts whenever the premiums were paid after the time stipulated. His mode of dealing with persons taking out policies at the local office, his use of renewal receipts. his acceptance of premiums after the day on which they were payable, were all known to the home company, and it retained the premiums thus received. The insured died at the city of New Orleans on the 11th day of November, 1872 *** and the annual premium due at the latter date was not paid until ten days thereafter. A friend then paid it to the agent and took from him a renewal receipt. *** Held, that the company, by the agent's receipt of the premium, waived the forfeiture for nonpayment at the stipulated time. * * A waiver can only be justly claimed by the assured where the course of dealing by the company has been such as to induce his action, and the company should be apprised of the facts which create the forfeiture, and of those which will necessarily influence its judgment in consenting to waive it."

*

In the case of Insurance Co. v. Eggleston. 96 U. S. 572, 24 L. Ed. 841, it is said: "Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract." And in the opinion of Justice Bradley it is said: "We have recently in the case of Insurance Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689, shown that forfeitures are not favored in the law, and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, upon which the party has relied and acted."

We quote from the syllabus in the case of Knights of Pythias v. Kalinski, 163 U. S. 289, 16 Sup. Ct. 1047, 41 L. Ed. 163: "The continued receipt of assessments upon an endowment certificate up to the day of the holder's death is, under the circumstances of this case, a waiver of any technical forfeiture by reason of nonpayment of lodge dues." And in the opinion by Mr. Justice Brown is the following: "Granting that the continued receipt of premiums or assessments after a forfeiture has occurred will only be construed as a waiver when the facts constituting a forfeiture are known to the