the contract orally but also to waive orally a condition or to estop the insurance company seems on principle excluded. Though there may be a waiver based on promissory estoppel without a variation of the contract, 19 it is essential for estoppel of any kind that action shall be reasonably taken in reliance on some representation or promise made by the person estopped or by one having power to bind him. The terms of a policy containing the provision under discussion not only preclude the supposition of authority on the part of an agent to make parol representations or promises, but also preclude the reasonableness of any reliance thereon.20 Doubtless the corporation cannot limit its own power to make oral substituted contracts or waivers, and the fact that it states in a policy that the powers of its agents are limited to what is stated in writing will not prevent it from giving them larger powers during the life of the

"See supra, § 595.

20 In Gladding v. California, etc., Fire Ins. Assoc., 66 Cal. 6, 8, 4 Pac. 764, the court thus expressed the matter: "The mode is the measure of the power. If so, no officer of the company was authorized to consent to an increase of the risk in any other than the prescribed mode." To the same effect are: Northern Assurance Co. v. Grand View Building Assoc., 183 U. S. 308, 46 L. Ed. 213, 22 S. Ct. 133; Enos

. Sun Ins. Co., 67 Cal. 621, 8 Pac. 379; Kyte v. Commercial Assur. Co., 144 Mass. 43, 10 N. E. 518; Atwood v. Caledonian Am. Ins. Co., 206 Mass. 96, 92 N. E. 32; Woodside Brewing Co. v. Pacific Fire Ins. Co., 11 N. Y. App. Div. 68, 42 N. Y. Supp. 620, affd. 159 N. Y. 549, 54 N. E. 1095. And see cases infra, n. 39.

In Baumgartel v. Providence, etc., Insurance Co. decided by the Court of Appeals of New York, 136 N. Y. 547, 32 N. E. 990, the owner of the insured property, about a week after the issuance of the second policy, told the agent, who issued the previous policy and the one sued upon, that he had taken out some additional insurance,

when the agent said: "All right, I will attend to it." Nothing further was said. The policy was never delivered to the agent, and he never indorsed thereon the company's consent to the issuance of the additional policy. The policy was a standard form containing provisions requiring written indorsement of permission for other insurance. The insured property was destroyed by fire, and the insurer defended on the ground that additional insurance had been taken out without having the written consent of the insurer indorsed upon the first policy. The plaintiff contended that, because of the defendant's knowledge of the concurrent insurance and the promise of its agent "to attend to it" (which was understood to mean that he would indorse the company's consent on the policy), the clause prohibiting additional insurance was waived. The court held that the condition could not be waived except in the manner provided therefor in the policy, and that the policy had been forfeited. To the same effect is Hrouish v. Home Ins. Co., 33 S. Dak. 428, 146 N. W. 588.

policy.21 But such a change cannot be assumed without proof, and if by authority of the directors of the company the powers of all its officers or agents are limited, one of them, even the president, cannot enlarge the powers of any of them. If the insurer chooses to require a vote of the directors. for the validity of even a trivial act and brings notice of the requirement to the other interested party, there can be no legal objection to the requirement. Clear as this seems on principle, the hardship that arises when the insured in good faith trusts to parol representations or promises of an agent authorized to write insurance, has led many courts to hold that a parol waiver based on estoppel may be worked against the company by such an agent in spite of any limitations of authority in the policy. 22

§ 760. Express limitation on powers of agents to waive conditions.

A prohibition more precise (though it seems of identical meaning) attempted by insurance companies to the effect that no officer or agent of the company should have power to modify or to waive terms of the policy without written indorsement has also been held ineffectual by some courts; 23 but the con

21 Insurance Co. v. Norton,96 U. S. 234, 24 L. Ed. 689.

22 People's National F. Ins. Co. v. Jackson, 155 Ky. 150, 159 S. W. 688; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Dahrooge v. Sovereign F. Ins. Co., 175 Mich. 248, 141 N. W. 572; Steen v. Niagara Fire Ins. Co., 89 N. Y. 315, 42 Am. Rep. 297; Goldwater v. Liverpool, etc., Ins. Co., 39 Hun, 176, affd. in 109 N. Y. 618, 15 N. E. 895; St. Paul, etc., Ins. Co. v. Parsons, 47 Minn. 352, 50 N. W. 240; German Ins. Co. v. Heiduk, 30 Neb. 288, 46 N. W. 481, 27 Am. St. Rep. 402 (but see Hartford Fire Ins. Co. v. Landfare, 63 Neb. 559, 88 N. W. 779); Springfield Fire &c. Ins. Co. v. Halsey, 52 Okl. 469, 153 Pac. 145.

23 Southern States F. Ins. Co. v. Vann, 69 Fla. 549, 68 So. 647, L. R. A.

1916 B. 1189; Hanover Fire Ins. Co. v. Dole, 20 Ind. App. 333, 50 N. E. 772; German-American Ins. Co. v. Yellow Poplar Lumber Co., 27 Ky. L. Rep. 105, 84 S. W. 551; Rediker v. Queen Ins. Co., 107 Mich. 224, 65 N. W. 105; Wilson v. Commercial Union Assur. Co., 51 S. Car. 540, 29 S. E. 245, 64 Am. St. Rep. 700; Cave v. Home Ins. Co., 57 S. Car. 347, 35 S. E. 577; Wagner v. Westchester Fire Ins. Co., 92 Tex. 549, 50 S. W. 569; Carey v. German-American Ins. Co., 84 Wis. 80, 54 N. W. 18, 20 L. R. A. 267, 36 Am. St. Rep. 907. (But see Straker v. Phoenix Ins. Co., 101 Wis. 403, 77 N. W. 752). See also Crumley v. Sovereign Camp, 102 S. Car. 386, 86 S. E. 954, and an article by S. B. Warner in 6 Calif. L. Rev. 203, on the effect of a provision in an insurance policy

trary and sounder view is supported by good authority.24 Finally, a still more explicit provision has been attempted which confines the authority to modify or waive conditions to certain specified officers who, it is provided, are authorized to make such modifications or waivers in writing on the policy. Even with such a provision parol waivers have been upheld; 25 though other courts enforce the terms of the policy.26

A distinction seems possible in this respect between a waiver based on estoppel or on a promise, on the one hand, and election on the other. While an agent's powers to promise or to represent may be limited, an insurance company having knowledge of a breach cannot retain a benefit to which it is only entitled on the theory that a policy continues in force, and also deny the validity of the policy. And if the company by its agents or officers authorized to receive and retain the benefit does so retain benefits which it is entitled to retain only on the assumption that the policy continues, the legal consequences of election will follow although the policy may state in express terms that they shall not.27 A statute also may give one who solicits insurance or receives premiums the powers of an agent. 28 Likewise if an agent is authorized to make an oral contract for insurance, an oral contract on new consideration in substitu

Hankins v. Rockford Ins. Co., 70 Wis. 1, 35 N. W. 34; Stevens v. Queen Ins. Co., 81 Wis. 335, 51 N. W. 555, 29 Am. St. Rep. 905, and see cases supra, n. 41.

27 Beatty v. Mutual Reserve Fund L. Assoc., 75 Fed. 65, 21 C. C. A. 227; Crumley v. Sovereign Camp, 102 S. Car. 386, 86 S. E. 954. Thus where an insurance company receives insurance premiums, having knowledge of a breach, and retains them, the retention will amount to an election to choose the benefit of the premiums rather than the avoidance of the policy, in spite of clauses requiring waivers to be in writing. Bennett v. Union Central Life Ins. Co., 203 Ill. 439, 67 N. E. 971; Union Central Life Ins. Co. v. Whetzel, 29 Ind. App. 658, 65 N. E. 15; Northam v. International Ins. Co., 45 N. Y. App. D. 177, 61 N. Y. S. 45, affd. 165 N. Y. 666, 59 N. E. 1127. The same principle was applied in Manchester v. Guardian Assur. Co., 151 N. Y. 88, 45 N. E. 381, 56 Am. St. Rep. 600, where a general agent with authority to indorse a waiver promised but failed to go to a mortgagee of the insured property who held the policy,

and make the required indorsement. See also Kotwicki v. Thuringia Ins. Co., 134 Mich. 82, 95 N. W. 976. Cf. Northam v. Dutchess Co. Mut. Ins. Co., 166 N. Y. 319, 59 N. E. 912, 82 Am. St. Rep. 655. Where the agent, in reply to a statement of the insured that the insured property had been assigned, and that the policy was locked up in a safe which he could not open, said, "I will see that the insurance is all right." In this case and in Baumgartel v. Providence, etc., Ins. Co., 136 N. Y. 547, 32 N. E. 990, where the agent said, "All right, I will attend to it," the court held that there was no estoppel. There was "at best but a promise to make the proper indorsement when the policy should be presented to the agent." A still more difficult case to distinguish from Manchester v. Guardian Ins. Co., supra, is Perry v. Caledonian Ins. Co., 103 N. Y. App. Div. 113, 93 N. Y. S. 50.

28 A Florida statute to this effect was sustained in American F. Ins. Co. v. King Lumber & Mfg. Co., (U. S. Oct. Term, 1918), 39 S. Ct. Rep. 431.

tion for a previous written policy may well be held valid; the prohibition in the policy against any but written modifications being construed as aimed only at changes in the policy without additional premium. 29

§ 761. Whether an ineffectual attempt to collect a premium deprives the insurer of a known defence.

An ineffectual attempt without suit to collect a premium after the policy by its terms has become invalidated by nonpayment has been held to preclude the insurer from thereafter, for that reason, refusing to fulfil its contract.30 These decisions find support in a dictum by Parke, B., in regard to the analogous case of a landlord electing to continue a tenancy rather than disposess a tenant for breach of condition. He said "I think that an absolute unqualified demand of the rent [accruing subsequent to breach of condition] by a person having sufficient authority, would have amounted to a waiver of the forfeiture." 31 This dictum, however, seems never to have been followed.32 Such a result seems undesirable. The facts doubtless show that the insurer or landlord is willing to accept payment at the time when demand is made and, on condition that payment is then made, to disregard the delay up to that time; but they do not show a willingness to keep the contract in force even though the payment is not made. The decisions are inconsistent with the cases of election referred to in the preceding section, and are opposed by other authorities holding that merely demanding a premium is not a conclusive election to continue a policy of insurance in force.33 Moreover, a de29 Mackintosh v. Agricultural F. Ins. Co., 150 Cal. 440, 89 Pac. 102, 119 Am. St. Rep. 234.

30 Galliher v. State Mutual Life Ins. Co., 150 Ala. 543, 43 So. 833, 124 Am. St. Rep. 83; Union Central Life Ins. Co. v. Burnett, 136 Ill. App. 187; Union Central Life Ins. Co. v. Spinks, 119 Ky. 261, 83 S. W. 615, 69 L. R. A. 264; Walls v. Home Ins. Co., 114 Ky. 611, 71 S. W. 650, 102 Am. St. Rep. 298; New England Mutual Life Ins. Co. v. Springgate, 129 Ky. 627, 112 S. W. 681, 113 S. W. 824; Olmsted v.

Farmers' Mutual Fire Ins. Co., 50
Mich. 200, 15 N. W. 82; Robinson v.
Pacific F. Ins. Co., 18 Hun, 395.

31 Doe v. Birch, 1 M. & W. 406, 408. 32 It was quoted in Dendy v. Nicholl, 4 C. B. (N. S.) 376, 735, with the remark (at page 386) "that dictum goes beyond what is necessary in the present case." In Dendy v. Nicholl, it was held that bringing an action for rent accruing subsequent to the forfeiture was a conclusive election to continue the tenancy.

33 Ware v. Millville, etc., Ins. Co., 45