promise made to him, what was agreed to be done shall be taken as having been done. Henschel v. Oregon F. & M. Ins. Co. (1892) 4 Wash. 476, 30 Pac. 735, 31 Pac. 332, 765.

In the following cases, where it does not appear from the report whether the policy was in the possession of the agent, although the implication is that it was, it has been held that a promise of an authorized agent to indorse permission to do acts which by the terms of the policy would avoid it unless consent thereto were indorsed on the policy, amounts to a waiver of the requirement of a written indorsement, where the agent fails or neglects to make the indorsement, although the policy provides that no agent shall have power to waive provisions of the policy except in writing: Eagle Fire Co. v. Lewallen (1908) 56 Fla. 256, 47 So. 947; Queen Ins. Co. v. Straughan (1904) 70 Kan. 186, 109 Am. St. Rep. 421, 78 Pac. 447.

Thus, where a policy forbade other insurance unless a consent to take out such insurance was indorsed on the policy, and provided that no agent should have power to waive any of its provisions except by writing, the court in Eagle Fire Co. v. Lewallen (1908) 56 Fla. 246, 47 So. 947, held that the promise of a local agent of the insurer to indorse on a policy an agreement for other insurance, and to furnish the plaintiff with the necessary memorandum permitting such additional insurance, amounted to a waiver by the company of the provision requiring written consent for other insurance, where the agent failed or neglected to make the indorsement, or to furnish a memorandum slip. The court said: "The agent received the notice of other insurance, and gave a verbal consent thereto, promising to indorse the agreement therefor upon the policy. He allowed the plaintiff to rely upon the validity of his policy and upon the belief that the company consented to the additional insurance, and no question was ever raised about that matter until after the loss. If the company desired to forfeit the contract for this reason, it should

have acted during the life of the contract, and should have returned the unearned portion of the premium before the fire. If it had done so, the plaintiff could have secured other insurance. If anyone must suffer for the negligence or wrongdoing of the agent of an insurance company, it should be the company, and not its patron who has relied upon the promise and conduct of the agent. The company appoints its agent and can recall his authority. If the assured procure other insurance without notice to the company his policy should be forfeited; but if such insurance is procured, and the assured gives due notice thereof to the company through its agent, he has done all that he can do in regard to the matter. Then the company, through its agent, should take some affirmative action. It should promptly either give its consent to the other insurance and indorse its agreement therefor on the policy, or it should declare the policy forfeited and cancel the same before the loss of the property; but it should not be permitted by the conduct and actions of its agent, which speak louder than the words of the policy, to lull its patrons into a belief of security against loss, and then, after the destruction of the insured property, rely upon the written words of the policy for release from liability thereon."

And an insurance company will be held to have waived a condition forbidding the vacancy of the premises insured unless it is otherwise provided for by the policy, which also forbids a waiver of any conditions by an agent otherwise than in writing, by the act of the agent who procured the policy, knowing the premises were unoccupied, in promising to indorse a vacancy permit on the policy, although he neglected to do so, thinking that such indorsement was unnecessary. Queen Ins. Co. v. Straughan (Kan.) supra.

And so it has been held that in an action to recover for the loss of goods insured, after their removal to a different location, the defense of a forfeiture on the ground of such removal will be held to have been waived,

where, prior to the loss, the insured gave notice of such removal and requested the authorized agent of the insurer to transfer the insurance to cover the goods in their new location, which the agent agreed to do, although no formal consent for transfer was in fact executed. Kor v. American Eagle F. Ins. Co. (1920) 104 Neb. 610, 178 N. W. 182. In that case, however, the court was actually dealing with a parol contract of insurance.

b. Where policy is in control or possession of insured.

The rule seems to be fairly well settled that a promise of an agent to make an indorsement on a policy of consent to changes, which is not in fact done, is not a waiver of conditions of the policy requiring written indorsements and forbidding agents to waive any conditions except by writing, or an estoppel to assert them if at the time of the promise the policy is not in the possession of, or readily accessible to, the agent, and the insured fails to present it to him for indorsement. Connecticut F. Ins. Co. v. Smith (1897) 10 Colo. App. 121, 51 Pac. 170; People's Nat. F. Ins. Co. v. Jackson (1913) 155 Ky. 150, 159 S. W. 688 (dictum); Baumgartel v. Providence Washington Ins. Co. (1893) 136 N. Y. 547, 32 N. E. 990; Northam v. Dutchess County Mut. Ins. Co. (1901) 166 N. Y. 319, 82 Am. St. Rep. 655, 59 N. E. 912; Tompkins v. Hartford F. Ins. Co. (1897) 22 App. Div. 380, 49 N. Y. Supp. 184; Perry v. Caledonian Ins. Co. (1905) 103 App. Div. 113, 93 N. Y. Supp. 50.

Thus, where the agent was informed of the intention of the insured to remove the property covered by the policy to another location, and requested to make the necessary indorsements of permission to make the change on the policy, which the agent promised to do if the insured would produce the policy for that purpose, the insured cannot claim a waiver of the conditions of the policy requiring written indorsements consenting to changes of location, within the rule that where an agent agrees to do a thing, and the insured relies upon the promise to his

detriment, the insurer cannot be afterwards permitted to contend that the condition was not expressed in writing as provided for by the policy, where the evidence shows that the insured not only failed to bring the policy to the agent for indorsement, but subsequently, when the agent went to get the policy to indorse it, the insurer did not give it to him, but asked him to call again. Connecticut F. Ins. Co. v. Smith (1897) 10 Colo. App. 121, 51 Pac. 170. The court said that it was evident that the insured was not misled to his prejudice, and there was no room for the application of the doctrine of waiver resulting from declarations and acts of the agent, which is the basis of all decisions holding that conditions may be waived although there is an express limitation on the right of the agent to waive them without written indorsement.

And where the insured, whose policy forbade additional insurance without the written consent of the insurer, met the insurer's agent in the street and told him that he had taken out additional insurance, whereupon the latter said: "All right, I will attend to it," the court in Baumgartel v. Providence Washington Ins. Co. (1893) 136 N. Y. 547, 32 N. E. 990, reversing (1891) 61 Hun, 118, 15 N. Y. Supp. 573, held that inasmuch as it did not appear that the insured at the time of this conversation had the policy with him, or that he had ever afterwards applied to the agent to give a written consent to subsequent insurance as required by the policy, the insurer was not estopped from setting up as a defense to an action on the policy that it was void by reason of such other insurance, since the policy provided that no agent shall be deemed to have waived provisions or conditions thereof unless the same shall be written or attached to the policy. Respecting the application of the doctrine of estoppel, the court said: "At most, the language of the agent amounted to nothing more than his personal promise to do something in the future, and neither he nor the company could be held to be in default with respect to such promise,

until the plaintiff had presented the policy to him and requested him to make the indorsement. In case of a refusal then to do what he had promised to do, it may be that the plaintiff's reliance upon the promise, and any changed condition of the parties with respect to the new insurance in consequence, would be sufficient to induce a court of equity to compel performance. But as the case stands upon the record it is difficult to apply the doctrine of estoppel. There was no statement of an existing fact upon which the plaintiff relied to his prejudice, and which it would be inequitable to permit the other party to deny. Grant that there was a promise by the agent to make the indorsement on the policy, still the plaintiff never presented the policy to him, or asked him to make it. Until then it could not be said that the agent refused to carry out the promise. It is not denied on the part of the defendant that the agent had power to indorse the consent on the policy, and his promise to do it was within the fair scope of his powers. But the act which was necessary to continue the policy in force was never performed, and the conversation between the plaintiff and the agent imported nothing more than an understanding that at some future time the plaintiff would produce the policy and the agent would make the necessary indorsement."

And in Tompkins v. Hartford F. Ins. Co. (1897) 22 App. Div. 380, 49 N. Y. Supp. 184, where the policy was of standard New York form, providing that no agent shall be deemed to have waived any condition or provision of the policy unless the same be indorsed thereon in writing, the court, holding that an agent's promise to indorse permission to mortgage the insured property did not amount to a waiver of the requirement that the indorsement should be in writing, nor create an estoppel against relying on such provision, said: "The policy being in possession of the plaintiff, he knew that no indorsement was made upon or writing added or attached thereto. He knew, or was bound to know, that the power of the agent was

limited to the precise terms stated in the policy, that the provisions of the policy as to mortgages could be waived only by such indorsement or addition, and that no such indorsement or addition was made. He knew that the policy was not asked for by the agent, nor presented by himself for alteration. He had no right to rely upon the promise of the agent, and, therefore, cannot be said to have done anything or failed to do anything in the way of procuring other insurance, or otherwise, in reliance on such promise of the agent. The doctrine of estoppel, therefore, cannot be invoked by him in the present action."

So a statement by the insurer's agent, "I will see that the insurance is all right," made in response to the insured's statement that he had made a general assignment of his property, and wanted to keep his insurance good, will not estop the insurer from setting up the provision as a defense to an action on the policy, which was of New York standard form, where, at the time of the promise made by the agent, the insured did not have the policy with him so that the agent could make the necessary indorsement. Northam v. Dutchess County Mut. Ins. Co. (1901) 166 N. Y. 319, 82 Am. St. Rep. 655, 59 N. E. 912, reversing (1900) 51 App. Div. 618, 64 N. Y. Supp. 1144. See also Greentaner v. Connecticut F. Ins. Co. (1920) 228 N. Y. 388, 14 A.L.R. 841, 127 N. E. 249, reversing (1918) 184 App. Div. 293, 171 N. Y. Supp. 417.

And where for safe-keeping an insurance policy was deposited by the insured with a friend doing business in the vicinity of the insurer's agent, the promise of the agent to call at the place of deposit and make a proper indorsement on the policy of permission for additional insurance, which he failed to do, will not estop the insurer from claiming a forfeiture of the policy upon the ground that permission for additional insurance was not indorsed, since here the policy was under the control of the insured, who could have produced it for indorsement at any time, and who at his peril relied upon the promise of

the agent to go to the place of deposit and make his indorsement. Perry v. Caledonian Ins. Co. (1905) 103 App. Div. 113, 93 N. Y. Supp. 50.

However, the Michigan court has held that the promise of the insurer's agent, in a conversation over the telephone, to transfer the policy, which expressly provided that it should cover only property at a certain location, to cover the property when it should be removed to a new location, which transfer he then made out, but did not attach to the policy for the reason that it was then in the possession of the insured, is a substantial compliance with the provisions of the policy prohibiting any agent to waive provisions or conditions thereof except by waivers written upon or attached to the policy. Bennett v. Western Underwriters' Asso. (1902) 130 Mich. 216, 89 N. W. 702 (Grant, J., dissenting).

III. Under policies not limiting power of agent.

a. In general.

The rule adverted to supra, II. a, that a promise by an agent whose power of waiving provisions of the policy is expressly limited to waiver by written indorsement, to make necessary indorsements, will estop the insurer from setting up as a defense to an action on the policy a want of such indorsement, where the agent, having the policy in his possession or under his control, fails to make the indorsement, applies with greater force to cases where the policy merely requires a written indorsement of consent to changes, etc., without any attempt to limit the power of insurer's agents; and accordingly the courts have very generally held that a promise to make an indorsement on such a type of insurance contract will, where the indorsement is not made on the policy, constitute a waiver of the requirement of a written indorsement, or will estop the insurer from defending against the policy on the ground that the indorsement is lacking.

United States.-Dupuy v. Delaware Ins. Co. (1894) 63 Fed. 680.

Alabama. See Cosmopolitan F. Ins.

Co. v. Gingold (1912) 3 Ala. App. 537, 57 So. 266.

Arkansas.-Royal Ins. Co. v. Morgan (1916) 122 Ark. 243, 183 S. W. 198; Arkansas Mut. F. Ins. Co. v. Claiborne (1907) 82 Ark. 150, 100 S. W. 751; Neimer v. Claiborne (1908) 87 Ark. 72, 112 S. W. 387.

Illinois. Illinois Live Stock Ins. Co. v. Koehler (1895) 58 Ill. App. 57.

Iowa. See Medearis v. Anchor Mut. F. Ins. Co. (1897) 104 Iowa, 88, 65 Am. St. Rep. 428, 73 N. W. 495.

Kentucky.-People's Nat. F. Ins. Co. v. Jackson (1913) 155 Ky. 150, 159 S. W. 688.

Michigan.-Copeland v. Dwellinghouse Ins. Co. (1887) 77 Mich. 554, 18 Am. St. Rep. 414, 43 N. W. 991.

New York.-Whited v. Germania F. Ins. Co. (1879) 76 N. Y. 415, 32 Am. Rep. 330.

Ohio.-Ohio. Farmers' Ins. Co. v. Burget (1898) 17 Ohio C. C. 619, 9 Ohio C. D. 369.

Pennsylvania.-Mentz v. Lancaster F. Ins. Co. (1875) 79 Pa. 475; Davis v. Home Ins. Co. (1920) 74 Pa. Super. Ct. 92; McGinness v. Caledonian Ins. Co. (1922) 78 Pa. Super. Ct. 376. Texas.-Delaware Ins. Co. v. Wallace (1913) Tex. Civ. App. S. W. 1130.

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Wisconsin.-Palmer v. St. Paul F. & M. Ins. Co. (1858) 44 Wis. 201.

So, if the insurance agent's conduct, at the time of the execution of a chattel mortgage on the insured property to a bank of which he was the cashier, amounted to a promise to make a proper indorsement on the policy of the company's consent to such mortgage, but no such indorsement was made, the policy nevertheless remains valid and binding. Royal Ins. Co. v. Morgan (Ark.) supra.

However, in Hill v. Commercial Union Assur. Co. (1895) 164 Mass. 406, 41 N. E. 657, it was held that an oral promise of an agent, who had authority to attach written permits to insurance policies in effect expressing the assent of the insurer that buildings insured should stand vacant while repairs were being made, and who had the insurance policy in his hands, to attach a building permit to

the policy when the work should be commenced, which permit in fact was never attached, was not binding on the insurer. The court stated that it was immaterial that the agent, who was also the agent for the insured in respect to caring for and leasing the property insured, had the policy in his hands.

So, if the agent is not authorized to make contracts of insurance or indorsements on policies, his agreement to indorse on the policy the insurer's consent to a change of location of the insured's property, which he failed to do, will not estop the insurer from setting up as a defense to the policy, which was the Massachusetts standard form, that it was void because of the location of the property having been changed without the written consent of the insurer. Pringle v. Spring Garden Ins. Co. (1910) 205 Mass. 88, 91 N. E. 209.

And where the insured commenced to remove the insured property to another house, contrary to the provisions of the policy requiring written consent to any removal, and was asked by the agent if he desired his policy transferred, to which the insured replied, "By all means, if necessary," whereupon the agent promised to fix it on the books accordingly, the court in Simonton v. Liverpool, L. & G. Ins. Co. (1874) 51 Ga. 76, held that in case of failure of the agent to make the indorsement upon the books, the insurer would not be estopped from setting up the defense of a failure of such indorsement, for the reason, as pointed out in the reported case (ROYAL EXCH. ASSURANCE V. FRANKLIN, ante, 626), that the insured did not remove his goods relying upon the statement of the agent, but was removing them, and would have removed them, without such agreement.

Illustrations of rule.

Where the agent who procured a policy of insurance, containing a provision making it void in the event the property became vacant without the consent of the insurer indorsed on the policy, knew that the building was not occupied, as it had not been completed, and promised the insured to

indorse on the policy vacancy permits every thirty days until the building should be completed, and who, having ready access to the policy for the purpose of making such indorsement, had indorsed two such thirty-day permits, but had, through inadvertence, failed to make a new indorsement upon the expiration of the last one, the court in Dupuy v. Delaware Ins. Co. (1894) 63 Fed. 680, held that such failure, whether through inadvertence or otherwise, could not be used to defeat the insured's claim to indemnity which the insurer had contracted to secure him.

And where the policy provided for a forfeiture in case of any changed location of the insured property without the written consent of the insurance company, the court, in Ohio Farmers' Ins. Co. v. Burget (1898) 17 Ohio C. C. 619, 9 Ohio C. D. 369, held that the statements of the general agent of the insurer, in whose possession the policy was, in response to a communication to him by the insured that she desired to remove to another location, said, "Very well, we will take care of you," and "You come in and we'll fix your policy for you," constituted a waiver of the provision, so that the insurer would be liable for a loss thereafter, notwithstanding the failure of the agent to indorse the company's consent to such change of location. This case was limited to instances where there is no express limitation on the power of the agent, by T. F. Walsh & Co. v. Queen Ins. Co. (1905) 27 Ohio C. C. 313.

And in Delaware Ins. Co. v. Wallace (1913) Tex. Civ. App. —, 160 S. W. 1130, where the policyholder telephoned to the insurance company's agent, asked for the general agent of the insurance company, and requested him to indorse on his policy consent to the removal of the insured goods to another location, and the person answering the telephone assured him that this would be done, it was held that whether or not the indorsement was actually made in no respect affected the right of the assured to recover, in case of fire, notwithstanding that the policy provided that no