repurchase or a resale, or a reassignment, but the right to redeem was expressly stipulated. The language used shows that the parties intended that the policy should be held as security for the premiums paid. Such a construction is at least as admissible as any other, and hence the court did not err in directing a verdict for the plaintiff.

I have treated the transaction as a mortgage, but it is unimportant to determine whether it was a mortgage, or a pledge, as the same course of reasoning would apply, and the same consequences would follow whether it was one or the other.

The judgment must therefore be affirmed.

All concur.

UNITED STATES SUPREME COURT.

OCTOBER TERM, 1877.

Error to the U. S. Circuit Court for the Eastern District of Missouri.

GLOBE MUTUAL LIFE INS. CO.

VS.

WOLFF.*

The policy provided that it should be void if the premiums were not paid when due, or if the insured resided within a certain prohibited district without the company's consent given in writing; also that agents were not authorized to waive forfeitures. The insured died while residing in New Orleans within the prohibited district, without the knowledge or consent of the company. When in extremis, a friend was telegraphed to pay the premium, then eleven days overdue, to the local agent at St. Louis. The friend was ignorant of the sickness. The premium was received and the renewal receipt given by the agent's clerk as was his custom, and the amount was credited to the company in the agent's account transmitted to the home office. The facts concerning the sickness and death were subsequently learned by the agent and communicated to the home office, upon whose instructions a return of the premium was tendered and refused. The company was accustomed to send renewal receipts to the local

* Decision rendered Nov. 5, 1877. Briefs of counsel from the reporter.

agent to be used at his discretion after premiums were overdue, and the agent was in the habit of giving such receipts, the company retaining the premiums when over-due.

Held, that the company by its course of dealing waived the provision prohibiting the agent from waiving a forfeiture, so far as related to premiums over-due, and the reception of the premium in this case was a waiver of the forfeiture from that cause.

Heid, that the agent was not authorized by any acts of the company to waive a forfeiture resulting from residence within the prohibited district, and such forfeiture was not waived by the receipt of the premium while ignorant of the facts concerning the health of the insured.

Judgment reversed.

NOBLE & ORRICK, for Plaintiff in Error.

Ambiguous circumstances, or a consent by a broker or sub-agent having only ordinary authority, will not show waiver of punctual payment of premium. Life Ins. Co. vs. Willets, 24 Mich., 268; Morland vs. Ins. Co., 71 Penn. St., 393.

A policy of insurance, forfeited by breach of a condition, cannot be revived by any act of waiver or estoppel, unless such act is done on full knowledge of the facts. Security Ins. Co. vs. Fay, 22 Mich., 467; Piedmont Ins. Co. vs. Ewing, 2 Otto, 380; Evans vs. U. S. Ins. Co., 6 Thomp. & C., 331; 3 Hun., 537; Chase vs. Hamilton Ins. Co., 20 N. Y., 55; Jennings vs. Chenango etc. Co., 2 Denio, 75; Brown vs. Cattaraugus M. I. Co., 18 N. Y., 389; Catoir vs. Am. L. I. & T. Co., 33 N. J., 487; Wall vs. Home Ins. Co., 8 Bosw., 597; Koelges vs. Guardian Life Ins. Co., 2 Lans., 480; Finley vs. Lycoming Ins. Co., 30 Penn. St., 314; Forbes vs. Agawam etc. Co., 9 Cush., 473; Barrett vs. Union M. F. I. Co., 7 ib., 175; Blake vs. Exchange M. I. Co., 12 Gray, 265; Worcester Bank vs. Hartford F. Ins. Co., 11 Cush., 265; Lee vs. Howard Fire Ins. Co., 3 Gray, 589, 594; Franklin F. Ins. Co., of Balt. vs. Chicago Ice Co., 36 Md., 119; Abbott vs. Gatch, 13 ib., 329; Morey vs. N. Y. Life Ins. Co., 4 Bigelow Life Ins. & Acc. Rep., 158.

It is to be observed that these authorities go chiefly to the question of power to waive forfeiture from non-payment of premium, by subsequent acceptance thereof; but they are much stronger to support the proposition that the agent could not waive a forfeiture from an entirely independent cause, by mere acceptance of the premium. The possession of the money is in some degree an equivalent for the past forfeitures from non-payment, but it has no natural relation to a forfeiture from residence in a prohibited district, and is no equivalent, as this case fully exhibits. The agent by this gross construction

would be able to put the yellow fever among the risks of the company, whether it chose to do business on that basis or not.

We are aware of the case of Viele vs. Germania Ins. Co., 26 Iowa, 9, and the learned note thereto, printed in Withrow & Stiles' Iowa Digest, "Insurance," p. 622; but we think the cases opposed, 23 Pick., 418, 6 Cush., 342, 16 Ohio, 148, and others, the stronger, and we rest on them.

But even the Iowa cases and those in harmony with them do not go to the extent of holding that an agent, when forbidden, can yet waive forfeitures by acts, declarations, and "dealings."

CLINE, JAMISON & DAY, and MONTGOMERY BLAIR, contra.

The receipt, by an agent, of an overdue renewal premium, with knowledge of any breach of the terms of the policy, continues the policy. The effect is the same as though the premium had been paid when due. May on Ins., § 502; Bliss on Life Ins., (2d ed.,) § 308; Carpenter vs. Ins. Co., 2 Am. Lead. Cases, (5th ed., Hare & Wallace's Notes,) 906; Viele vs. Germania Ins. Co., 26 Iowa, 1; North Berwick Ins. Co. vs. Ins. Co., 52 Me., 336; Bouton vs. Ins. Co., 25 Conn., 542. The forfeiture is waived the same as though the principal had received the premium with knowledge of the breach, even though the policy provides that agents have no authority to waive forfeitures. Ins. Co. vs. Wilkinson, 13 Wall., 222; Miner vs. Phoenix Ins. Co., 27 Wis., 693; Viele vs. Germania Ins. Co., 26 Iowa, 9; Peoria Ins. Co. vs. Hall, 12 Mich., 202; Franklin vs. Ins. Co., 42 Mo., 456; New York Central Ins. Co. vs. Ins. Co., 20 Barb., 469; Hodsdon vs. Guardian Life Ins. Co., 97 Mass., 144; May on Ins., § 143; Wing vs. Harvey, 27 E. L. & E., 140.

Forfeiture of a policy, by reason of residing within a prohibited territory, may be waived, like any other ground of forfeiture, by a receipt of a premium by either the company or its agent, with knowledge that there has been such ground of forfeiture. Bevin vs. Conn. Mut. Life Ins. Co., 23 Conn., 244; Walsh vs. Ins. Co., 30 Iowa, 133; Wing vs. Harvey, supra.

The customary dealing by a company with its policy-holders may be shown to prove a waiver of its right to enforce a forfeiture on failure to pay premiums at the time they became due by the terms of its policies. Buckbee vs. U. S. Ins. Co., 18 Barb., 541; S. C. 1 Bigelow on Ins., 406; Ruse vs. Mut. Benefit Ins. Co., 26 Barb., 556; 1 Bigelow on Ins., 467; Helme vs. Phil. Ins. Co., 61 Penn., 107; 1 Bigelow on Ins., 685; Thompson vs. St. Louis Mut. Life Ins. Co., 52 Mo., 469;

Froehlich vs. Atlas Ins. Co., 47 Mo., 406; Mayers vs. Ins. Co., 38 Iowa, 304; Ins. Co. vs. Pierce, 75 Ill., 426.

FIELD, J.

This was an action on a policy of insurance issued by the Globe Mutual Life Insurance Company, of New York, on the 5th of November, 1869, upon the life of Charles H. Garber, commencing on the 1st of that month. The insurance was for the amount of $5,000, and was effected by the wife of the insured for her sole benefit. The premium designated was made payable annually on the 1st 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. Another condition provided that if the insured resided in any part of the United States south of the 33d degree of north latitude, except in California, between the 1st of July and the 1st of November, without the consent of the company previously given in writing, the policy should be null and void. And the policy declared that agents of the company were not authorized to make, alter, or discharge contracts, or waive forfeitures.

The insured died at the city of New Orleans on the 11th of November, 1872. Between the 1st of July and the 1st of November of that year he had resided at that city, which is south of the 33d degree of north latitude, without the previous consent in writing of the company; and the annual premium due on the 1st of that month was not paid on or before that day.

By this residence of the insured within the prohibited district of country during the period designated, without the previous consent of the company, and the failure of the holder of the policy to pay the annual premium when it became due, the policy, by its express terms, was forfeited, and the company released from liability, unless the forfeiture was waived by the action of the company, or of its agents authorized to represent it in that respect.

The waiver of the forfeiture for the non-payment of the premium due on the 1st of November, 1872, is alleged on the ground that the premium was subsequently paid to an agent of the company, he delivering its receipt for the same, signed by the secretary and countersigned by the manager and cashier of the local office, the plaintiff

contending that the company by its previous general course of dealing with its agents, and its practice with respect to the policy in suit, had authorized the premiums to be paid and the agent to receive the same after they became due, and thus had waived any right to a strict compliance with the terms of the policy as to the payment of premiums.

The waiver of the forfeiture arising from the residence within the prohibited district between the 1st of July and November, without the previous consent of the company, is also alleged from the subsequent payment of the premium and its receipt by the local agent, the plaintiff contending that the premium was received with knowledge by the agent of the previous residence of the insured within. the prohibited district.

It appears from the record that the deceased was taken sick with the yellow fever at New Orleans on the 6th or 7th of November, 1872, and died on the 11th of the month, between the hours of eleven and twelve in the forenoon. On the previous day a telegram was sent by Mrs. Garber from New Orleans to a gentleman in St. Louis, directing the latter to go to the agency of the company in that city, at which the policy was issued, and pay the premium due on the 1st of the month. Accordingly, on the following morning, at about nine o'clock, the premium was paid by this gentleman, and a renewal receipt was thereupon delivered to him. This renewal receipt was dated in New York and signed by the secretary of the company. It not only acknowledged the receipt of the premium, but it continued the policy in force for another year. The practice of the company was to send to its agents in St. Louis receipts in this form signed by its secretary, to be countersigned by the local manager and cashier before being used. The receipt given was thus countersigned. The payment was made in the present case to a boy in the office of the agent, and by him the renewal receipt was delivered. It was his habit to receive premiums and deliver the proper renewal receipt in the absence of the agent. In this case the money was given by him on the latter's coming to the office the same morning. The agent credited the amount to the company in his semi-monthly account transmitted to the home office. The gentleman who paid the premium was not aware at the time that the insured was sick, and no inquiries were made by the boy or the agent as to his health. It is conceded that they had no information on the subject. A few days afterward the agent learned of the death of the insured, and of the sickness which was the immediate cause of it, and informed the home