After would take the matter up with the company, and see what he could get them to do. this the company wrote that they would not charge the plaintiff the $100 previously advanced to him, and would give him $100 extra, and 10 per cent. additional commission on all business. Thereafter he charged 60 per cent. commission instead of 50 per cent., and so reported to the company. Mr. Waters testified, among other things, that he obtained the surrender of the Beck policy because he was convinced, upon investigation, that the risk was undesirable; that Beck was in financial difficulties, which involved a moral hazard, which the company did not care to assume. The defendant company wrote to plaintiff telling him that they did not attach any blame to him or the medical examiners in the Beck matter, and that they had done their full duty; that they understood agents of other companies considered Beck a good risk, and that competent physicians had passed upon him as such. On September 13, 1898, plaintiff resigned as agent of the defendant company, demanded his commissions on the Beck notes, and brought this action to recover the balance claimed of $1,651. The jury, under instructions of the court, found in favor of the plaintiff, and the defendant appeals, assigning error in the admission of testimony, and in the charge to the jury and rulings of the court. Bennett, Harkness, Howat, Sutherland & Van Cott, for appellant. Dey & Street, for respondent. After stating the facts, MINER, J., delivered the opinion of the court. is The first question for consideration whether or not, after the plaintiff had obtained the application for insurance from Mr. Beck, and the defendant had accepted said application, and issued the policy to Beck, receiving his notes in payment of the first year's premium, and receiving payment of one note, the defendant, before the maturity of any of the remaining notes, could, by contract with Beck, purchase the surrender of the policy for a consideration of $500 cash, and the surrender of the two unmatured notes, without proof of fraud, or without an express waiver by the plaintiff, and thus deprive plaintiff of the commissions on the remainder of the premiums, under the contract providing that commissions should be paid upon the premiums which should be paid in cash and received by the defendant. The facts show that plaintiff had performed his part of the contract, and obtained an application for insurance that was satisfactory to the defendant; that, after full examination, defendant accepted Beck's application, and delivered a policy to him, and gave its receipt in full payment of the first year's premium. Having accepted the Beck notes, a legal obligation, as between the defendant and the plaintiff, rested upon the defendant to collect the notes when they became due, and out of the proceeds thereof pay the agreed commission. This obligation cannot be avoided, under the contract, by the claim that the company afterwards learned that the risk was undesirable, or that it understood that Beck had been refused insurance in another company. It might forfeit the policy for fraud in procuring it, for misstatements in the application, or for nonpayment of the notes, but this course was not attempted. On the contrary, the company recognized the binding force and legality of the policy by paying $500 in cash, and surrendering the notes not yet due, in order to purchase Beck's rights therein, and relieve itself from liability. The company could not thus relieve itself from such liability to the plaintiff for the commission earned by voluntarily placing beyond its power the right to collect the cash on the unmatured notes, because it had purchased the policy, and in part consideration thereof had surrendered the notes out of which the commissions should have been paid. The notes were not due. Having sold them to Beck, it is estopped from denying liability on the contract simply because it refused to collect the cash on the notes, as it should have done, or should have attempted to do, unless excused from that duty by the plaintiff. By receiving back the policy, the defendant may have received a full equivalent for the notes. The contract does not provide that the defendant, after having accepted the risk, shall have the right to buy a surrender of the policy, and thereby relieve itself from its duty to collect the notes in payment of the premiums. A principal who agrees that his agent shall receive a percentage of money or commissions to be paid upon a contract secured through such agent for the benefit of both cannot dispose of his own right to receive the fund, and thus deprive the agent of the reward for his services. Otherwise, the principal might receive a full equivalent for the original fruits of the agent's labor, and yet not pay him a dollar. The principal cannot do this without the agent's express consent, and in this case the evidence does not show that consent was given. The plaintiff was simply present when the agreement to purchase the surrender of the policy and notes was made for the consideration specified. The agent had no power to oppose the purchase or surrender, nor was his assent thereto required. Under the contract, he was required to perform such other services as the company desired him to perform. So far as appears, he may have gone with Waters as required by the contract. He was willing the company should do as it pleased, although he had previously discouraged it from taking up the policy, and there was nothing in his subsequent acts to justify a release of his rights, of the nature of which, under the contract and the terms of the policy, he was ig norant. Hix v. Light Co. (Sup.) 41 N. Y. Supp. 680; Bish. Cont. 690; Wolf v. Marsh, 54 Cal. 228. It is also insisted that the plaintiff waived his right to the commission, and therefore is not entitled to recover; that he is estopped by his conduct to insist upon his legal rights; and that the court erred in giving its instructions on these subjects to the jury. By the contract it is provided that the plaintiff shall not make, alter, or discharge any contract, or waive forfeitures. Under the contract, Beck and the company could deal with the policy as they pleased, without the consent of the plaintiff. The plaintiff, under the contract, had no right to interfere in such dealings, and had no power to prevent the company from giving or bargaining away the results of his labor, but in doing so the company acted at its peril. Had the plaintiff objected to the purchase of the policy, it would not have availed him. Plaintiff states that he stated to del-adent's agent Waters that he objected to argo the policy unless fraud was shown. In this he is disputed by the company's agent. The jury found the facts against the company. On the question of waiver, the court instructed the jury that if the plaintiff waived his right under the contract he could not recover, and that such waiver was an affirmative defense, and the burden of showing it was on the defendant. The court further instructed the jury as follows: "cu are further instructed that waiver is the intentional relinquishment of a known right. In general, no man can be bound by a waiv er of his rights, unless it is made with full knowledge of the rights which he intended to waive. So, in this case, if you believe, from the evidence, that the plaintiff was ignorant of the fact that under his contract he was entitled to commissions on the balance of the first year's premiums, provided the defendant purchased the surrender of the Beck policy, then he cannot be found to have waived or relinquished his right to the commission. The fact that the plaintiff deemed the commission lost to him because of the act of the company in purchasing the surrender of the Beck policy does not constitute a waiver or relinquishment of his right to the commission, unless you find that at the time or times he so expressed himself to the defendant or its agents he knew he had a right to insist upon payment of the commission, even though the company, for reasons of its own, bought the surrender of the Beck policy, and with such knowledge plaintiff then intentionally relinquished the right to the commission. You are instructed that the defendant had no right to wantonly or arbitrarily purchase the surrender of said policy, and to surrender to said Beck his notes; but if the defendant company, after the issuance of the said policy to said Beck, believed it to be to its best interests to purchase from Beck the surrender of said policy, by surrendering to said Beck said notes, then the defendant had the right to purchase the surrender of the said policy by the payment of $500, and returning to said Beck his notes; and if you believe, from a preponderance of the evidence, the plaintiff was fully informed and cognizant of all the facts and circumstances attending the transaction between defendant and Beck, and that he, by his acts, declarations, or conduct, intentionally waived to the defendant his rights to receive commissions on the amount of said notes surrendered, and also that the plaintiff had full knowledge of his rights in this respect, then the plaintiff cannot recover, and your verdict should be for the defendant." The question of the plaintiff's knowledge or ignorance in the matter is involved. If the plaintiff was ignorant of the fact that he was entitled to his commission at the time and after the defendant purchased the surrender of the policy, and did not intentionally waive his right therein after full knowledge, he was entitled to recover. This is so because a waiyer is an intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it. The waiver, if any, was a question of intent on the part of the plaintiff. Fowledge of the rights he had, and an intention to waive such right, should be made plainly to appear before a court or jury would, in such a case as this, be justified in declaring it. It is said that the plaintiff was bound to know the law, and that he must have known the facts. So far as the written contract alone was concerned, if not ambiguous or contradictory, this may be true. But when we consider the long course of dealing between the company and Beck, the company and St. Morris, and the company and Waters, concerning which plaintiff was largely uninformed; the company's dealings with plaintiff in reference to the Beck policy; and the ambiguous character of the contract,― it cannot be said that the plaintiff had full knowledge of all the facts, or of his rights, that would follow such a complicated state of facts. Indeed, the distinguished counsel representing the respective parties to the action, after a careful and critical review of the law and the evidence, do not agree as to what the facts are, what rights the contract bestows, or what the rights of the plaintiff are under the contract and evidence as it is presented to the court. In Bennecke v. Insurance Co., 105 U. S. 355, 26 L. Ed. 290, it is said: "A waiver of a stipulation in an agreement must, to be effectual, not only be made intentionally, but with knowledge of the circumstances. This is the rule when there is a direct and precise agreement to waive the stipulation. A fortiori is this the rule when there is no agreement, either verbal or in writing, to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party." Garesche v. Investment Co. (Mo. Sup.) 48 S. W. 657; Montague's Adm'r v. Massey, 76 Va. 314; Shaw v. Spencer, 100 Mass. 382; Hoxie v. The further facts are that it does not ap- Under the circumstances of this case, we find no reversible error arising from the instructions of the court to the jury, nor do we find that the court erred in refusing to give the instructions requested by the defendant. In its defense the defendant offered, ir mitigation of damages, to show that Beck was insolvent at the time the notes were surrendered. The testimony was objected to on the ground that it was immaterial, irrelevant, and incompetent, and on the ground that it was estopped, by the voluntary sale of the notes before they became due, of interposing that defense. This testimony was rejected. We are of the opinion that there was no error committed in the ruling of the court. The defendant could have canceled the policy for fraud, if shown. The policy would lapse and become in valid by its terms if the notes were not paid at maturity. But the defendant did not see fit to take this course. After it had accepted the notes in payment of a year's premium, and after one of the notes had been paid, and before the balance of the notes became due, it voluntarily made a bargain with Beck to buy from him the policy in consideration of $500 and the surrender of the remaining notes, without obtaining the plaintiff's assent thereto. By selling the notes and buying the policy the defendant allowed Beck credit for the value of the notes. The defendant voluntarily placed itself in a position whereby it had no power to collect the notes, as it was in duty bound to do or endeavor to do, and therefore it cannot now be heard to say that the maker was insolvent when the notes were surren dered. Hix v. Light Co. (Sup.) 41 N. Y. Supp. 680; Wolf v. Marsh, 54 Cal. 228. In addition to this, the defense of Beck's insolvency, sought to be interposed on the trial, was new matter offered in mitigation of damages, and was not pleaded, or in any The acmanner suggested, in the answer. tion was on a contract to recover plaintiff's commissions from defendant, not from the maker of the notes, and, if such a defense was admissible at all in such a case as this, it should have been set up in the answer. Section 2968, Rev. St., requires a statement of any new matter constituting a defense or counterclaim to be set up in the answer. McKyring v. Bull, 16 N. Y. 297; Morrell v. Insurance Co., 33 N. Y. 443; Pom. Code Rem. $$ 693-695; Foland v. Johnson, 16 Abb. Prac. 235; Gillson v. Price, 18 Nev. 118, 1 Pac. 459: Babb v. Mackey, 10 Wis. 371; 5 Enc. Pl. & Prac. 774; 1 Suth. Dam. $$ 165, 166; Fenstermaker v. Publishing Co., 12 Utah, 439, 43 Pac. 112, 35 L. R. A. 611; 1 Enc. Pl. & Prac. $30; Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Willover v. Hill, 72 N. Y. 36. Upon the whole record we find that the instructions given fully and fairly covered the issues in the case. The nonsuit was properly denied, and no reversible error appears in the record. The judgment of the district court is affirmed, with costs. BASKIN, J., concurs. BARTCH, C. J.. dissents. (21 Utah 313) TRIPLER v. MT. PLEASANT COMMERCIAL & SAVINGS BANK. (Supreme Court of Utah. April 9, 1900.) BANKS-ACTION TO RECOVER DEPOSIT-REAL PARTY IN INTEREST-EVIDENCE. In an action to recover a certain sum, alleged to have been deposited in defendant's bank for the use and benefit of plaintiff, it appeared that plaintiff, from Colorado, sent a check on a bank in that state to defendant "for deposit to the credit" of one T.; that the check was entered by defendant for collection, and T. was so notified; that the check was never paid; that a draft on New York, by the bank on which the check was drawn, to cover the amount, was protested; that plaintiff and T. were notified of the protest; that plaintiff afterwards sent defendant four other checks, covering an amount equal to the first check, and requested a return of the protested draft for use in proving his claim against the insolvent Colorado bank; that plaintiff was not using his own money, but the money of C., and was acting as the agent of C., although he had an interest in the profits of the business conducted, as well as a salary from C. Held, that the proof does not show a cause of action in favor of plaintiff against defendant; and held, further, that plaintiff was not the real party in interest. (Syllabus by the Court.) Appeal from district court, Seventh district; W. M. McCarty, Judge. Action by J. W. Tripler, agent, against the Mt. Pleasant Commercial & Savings Bank. Judgment for defendant, and plaintiff appeals. Affirmed. This is an action in which the plaintiff seeks to recover from the defendant the sum of $2,000, with interest, alleged to have been deposited by the plaintiff on September 18, 1897, for his own use and benefit, in the defendant's bank, in the name of Hans Tuft, to be checked out by the said Tuft in the purchase of cattle for the plaintiff, and that said sum was received by said defendant and placed to the credit of said Tuft in said bank; that thereafter said defendant refused to allow either the said plaintiff or the said Tuft to check out said money, or to pay over to the plaintiff or to the said Tuft said money, or any part thereof, although frequently requested so to do; and that said defendant still holds and retains said sum, and every part thereof. The answer admits the said agency of said Tuft, that the defendant is a corporation, and that the Bank of Montrose was a banking institution doing a banking business at Montrose, in the state of Colorado, but denies all the other allegations of the complaint, and sets up as a defense certain facts which it is not necessary to mention. The evidence adduced by the plaintiff, in substance, is as follows: The plaintiff testified that on the 31st day of August, 1897, he, as agent, entered into an agreement with Hans Tuft whereby the said Tuft was to purchase cattle at a certain price per head for plaintiff, at a commission of $1 per head (the plaintiff to furnish the money for the purchase of the cattle); that in pursuance of said agreement the plaintiff drew and sent to the defendant bank a check, of which the following is a copy: "Montrose, Colo. Sept. 15, 1897. Bank of Montrose: Pay to the order of myself $2,000 (two thousand dollars), with exchange. [Signed] J. W. Tripler, Ag't." Upon the back of this check the following indorsements were made: "For deposit in the Mount Pleasant Commercial and Savings Bank, Mount Pleasant, Utah, to the credit of Hans Tuft, Monroe, Utah. J. W. Tripler, Ag't." And: "Pay to the order of C M. McClure, cashier, for collection, for account of Mt. Pleasant Com'l & Savings Bank, Mt. Pleasant, Utah. O. F. Wall, Cashier." On cross-examination the plaintiff testified that he signed the check as agent. To the question, "Is that your own money, or somebody else's?" he answered, "Somebody else's." He further testified: "I have an interest in it. That one Chapman is interested with me. My agreement with him is, he is to furnish money, and I act as his agent, and I get a salary and a share of the profits. If there is a loss, it detracts from the profits, so I am interested in it. I get forty per cent. of the profits." "I am conducting cattle business as agent. I receive money from Mr. Chapman to invest in cattle, and I get a salary and per cent. of the profits. I buy and sell whenever I deem advisable. Have full charge of the business. Mr. Chapman supplies me with money for it. I keep books, and account to him for the money I receive. Have to show up in either cattle or expenditures." O. F. Wall, a witness in behalf of plaintiff, called and sworn, testified: "I am cashier of defendant's bank, and was such cashier in September, 1897. I remember about this $2,000 transaction with Mr. Tripler. That money was not checked out of the bank by Hans Tuft. I never paid Mr. Tuft that $2,000, nor gave Mr. Tripler, or any one else for him, the money. I never paid Mr. Trip ler back the money. I never received any money on that check. I sent check to Bank of Montrose immediately upon receipt of it. We received a draft for the check. Sent the draft to the Utah Commercial." It appears from the evidence that the draft of the Bank of Montrose was drawn on the Hanover Bank of New York, and was protested. O. F. Wall further testified as follows: "Mr. Tripler's. instructions were, when they sent the check, to place the amount to the credit of Hans Tuft. We did not do that. We entered it for collection. This was not entered upon the books to the credit of Mr. Tuft, except for collection, and, if paid, it would be placed to his credit, but it wasn't placed to his credit. On receiving the check we entered it for collection. Mr. Tripler was not a patron of our bank. We had no acquaintance with him. We notified Mr. Tuft we had received it and entered it for collection. We sent the draft for credit. We received word the draft had been protested before we received the latter dated September 30th. We sent Mr. Tuft a telegram that the draft had been protested for nonpayment, and we charged the amount of it up to him immediately upon the receipt of the telegram. A check for $1,000 or more would not be received by our correspondent in Utah as a cash item. For that reason we entered it for collection. We received letter from Mr. Tripler, dated October 15th, demanding draft, and sent draft to him (this New York draft), and the bank has not had it since. When we received the draft we entered that for the credit of Mr. Tuft. Mr. Tuft was permitted to check that out,-that $2,000. When we received word that the draft had been protested, we charged $2,000 up to Mr. Tuft on his account that we had given him credit for. That charge was made when we got word that the drait was protested in New York, after we heard that the draft was protested.--the next day after, I should think." On the same day (September 30, 1897) on which the said Hans Tuit was notified that said draft had gone to protest, said Tuft sent a telegram to the plaintiff notifying him of the fact, and the plaintiff immediately sent to the defendant the following letter: "I just received a message from Mr. Hans Tuft that the draft sent you by the Bank of Montrose had been protested. I inclose four checks, amounting to $2.000, which will make it good. Please acknowledge receipt, and notify Mr. Tuft. Respectfully, J. W. Tripler." And on the 15th day of October, 1897, he also sent to the defend ant the following letter: "Your favor, dated the 11th inst., acknowledging the receipt of the four checks for $500 each, which I sent you on the 30th ult., to be deposited to the credit of Hans Tuft in lieu of the N. Y. draft sent you by the bank of Montrose, which was protested, at hand. As you have, no doubt, collected these checks by now, I write to ask you to send me the protested draft, in order that I may use it in proving my claim against the Bank of Montrose. Respectfully, J. W. Tripler, Ag't." In obedience to this request, the draft was sent to the plaintiff. At the time and before this request was made it appears from the plaintiff's testimony that he was aware of the circumstances relating to the draft, and that his object in sending the four checks was to make good to the defendant the amount of the draft. These four checks were in the following form: "Philadelphia, Sept. 18, 1897. The Corn Exchange National Bank: Pay to the order of J. W. Tripler, Ag't, five hundred dollars ($500). Richard H. Chapman." On the back of each of these checks is the following: "For deposit in the Mount Pleasant Commercial & Savings Bank of Mount Pleasant, Utah, to the credit of Hans Tuft, of Monroe, Utah. J. W. Tripler, Ag't." When these checks were paid, the amount of the same was credited, as above directed, to Hans Tuft. After receiving the draft, as testified to by plaintiff, he caused a suit to be instituted against the Montrose Bank and its stockholders to recover the amount of said draft. What the result of that suit was, or whether it has as yet been terminated, does not appear. Shortly after said draft was drawn, the Bank of Montrose suspended business on account of insolvency. At the close of plaintiff's testimony, on motion of the defendant the trial court granted a nonsuit, on the ground that the evidence adduced failed to show any cause of action against the defendant, in favor of the plaintiff. S. S. Sherman, Reid & Cherry, and L. R. Rhodes, for appellant. D. D. Houtz and Ferdinand Ericksen, for respondent. BASKIN, J. (after stating the facts). The check on the Bank of Montrose was not discounted by the defendant. At the time the check was forwarded to the defendant, it was not acquainted with the plaintiff, and had had no transactions with him. We think it is clear from the plaintiff's own statements that he did not expect that the amount of the check, upon its reception, and before its collection, should be credited to Hans Tuft. This is evident from his letter of September 30th, in which he inclosed the four checks, of $500 each, and from his letter of October 15th, in which he stated, "As you have, no doubt, collected these checks [the four checks before referred to] by now, I write to ask you to send me the Protested draft, in order that I may use it in proving my claim against the Bank of Montrose." The four checks were drawn in his favor, as agent, by Richard H. Chapman, and his indorsement was the same on these checks as on the check of $2,000 on the Bank of Montrose, to wit: "For deposit in the Mount Pleasant Commercial & Savings Bank of Mount Pleasant, Utah, to the credit of Hans Tuft, Monroe, Utah. In other words, it is clear that the check for $2,000, like the four checks, was sent to the defendant for the purpose of having the same collected through the defendant bank, and thereby to create a fund in said bank to the credit of Hans Tuft, to be drawn out by him in the execution of his agency. Upon the reception of said check the relation of creditor and debtor between the plaintiff and defendant did not arise, and has never since existed. If the amount of said check had been collected by the defendant, Hans Tuft would have become the creditor of the bank; and, as his agency was coupled with an interest in the fund, no one except himself would have had any authority to check against the same. It also appears from the evidence that the plaintiff had no direct interest in the fund, but that he acted in the matter as the agent of Chapman. He drew the check for $2,000, as agent, not against any funds of his own in the Bank of Montrose, but against the funds of Chapman. The only interest which the plaintiff had in the premises was his salary, and a right to a share in the profits of the business which he was conducting as the agent of Chapman. In no view of the case could the loss occasioned by the failure to pay the draft of the Bank of Montrose fall upon the plaintiff. The draft was not made good by plaintiff, but by the four checks of Chapman. No part of the funds involved in the premise, belonged to him. In his evidence he stated: "I am conducting cattle business as agent. I receive money from Mr. Chapman to invest in cattle, and I get a salary and a per cent. of the profits. I buy and sell whenever I deem advisable. Have full charge of the business. Mr. Chapman supplies me with money for it. I keep books, and account to him for the money I receive. Have to show up in either cattle or expenditures." That the defendant also understood that the check was merely sent to it for the purpose before stated is shown by the testimony of O. F. Wall, cashier of defendant's bank. He testified that: "On receiving the check, we entered it for collection. Mr. Tripler was not a patron of our bank. We had no acquaintance with him. We notified Mr. Tuft that we had received it and entered it for collection." No objection was made to this by Tuft or the plaintiff, for such, we think, was the intention of all the parties. Appellant's counsel complain of the method pursued by defendant in the premises. As the defendant assumed the duty of collecting said check, if it failed in the proper |