923 ASSURANCE CO. v. GRAND VIEW B. ASSN. 183 U. S. 308-365 evidence of waiver by soliciting agent of "iron-safe clause" in fire insurance policy. Where waiver relied on is act of agent, it must be shown that agent had express authority or that company, with knowledge of facts, ratified his act. Approved in Rife v. Lumber Underwriters, 204 Fed. 39, 122 C. C. A. 346, rejection of offer to show local agent's waiver of clear space provision of insurance policy covering piles of lumber was properly rejected, where waiver was not written upon policy and there was no offer to show ratification by company; Clegg v. St. Louis etc. R. Co., 203 Fed. 973, 122 C. C. A. 273, action of carrier's general claim agent in negotiating for settlement of claim was not waiver of provision of bill of lading covering interstate shipment of livestock, requiring service of written notice of claim on some general officer or station agent; New York Life Ins. Co. v. Slocum, 177 Fed. 848, 101 C. C. A. 56, payment of certain amount on last day of month of grace and statement of agent that such payment would extend policy to May 27, 1908, which was beyond day of insured's death, if insured signed note, but insured failed to sign note, did not prevent forfeiture of policy; Becker v. Exchange Mut Fire Ins. Co., 165 Fed. 822, provision in policy for forfeiture upon nonpayment of premiums was not waived by written demand of company on broker for payment on date month later than date for forfeiture; Pacific Mut. Life Ins. Co. v. Van Fleet, 47 Colo. 410, 411, 107 Pac. 1091, application for insurance contains false answer as to whether insured had ever received compensation for injuries or sickness, inserted by agent and incomplete on its face, company accepting application and premiums and issuing policy could not avoid it; Modern Woodmen of America v. International Trust Co., 25 Colo. App. 43, 47, 136 Pac. 812, 813, where insured's misrepresentations to soliciting agent were willful, fact that agent knew statements were untrue does not estop company from avoiding certificate; Supreme Commandery United Order Golden Cross v. Bernard, 26 App. D. C. 176, where by-laws of fraternal benefit association provide for forfeiture of benefit and disconnection of member for failure to pay assessment, receipt of overdue assessment is not evidence of waiver of disconnection; Marion Iron etc. Bed Co. v. Empire State Surety Co., 52 Ind. App. 488, 100 N. E. 884, surety is not estopped to declare forfeiture of bond securing employer against employee's embezzlement for breach of conditions requiring employer to obtain reports from employee by failure to tender return of premium received for executing bond; Atwood v. Caledonian-American Ins. Co., 206 Mass. 102, 92 N. E. 34, insurer is not estopped to declare forfeiture for breach of condition requiring written consent to make alterations in insured premises by fact that insured notified company alterations were to be made and company did not reply; Lauze v. New York Life Ins. Co., 74 N. H. 338, 68 Atl. 34, acceptance of second premium by soliciting agent without delivery of receipt from home office as required by policy does not estop company from denying payment; Summers v. Alexander, 30 Okl. 209, 38 L. R. A. (N. S.) 787, 120 Pac. 606, agent substituting different policy from that agreed upon, not discovered by illiterate insured person for five months, cannot recover on premium note; State Mut. Ins. Co. v. Craig, 27 Okl. 91, 92, 93, 111 Pac. 325, 326, assurer is not estopped to set up misrepresentations in application, although soliciting agent made estimates for assured and inserted same in application; Capital Fire Ins. Co. v. Carroll, 26 Okl. 292, 109 Pac. 537, insurance policy covering flour and roller mill included mill for grinding of bran, and was not avoided by cessation of operations as flour-mill for more than ten days under terms of policy, where mill was operated to manufacture bran, meal and feed products; Ohio Farmers' Ins. Co. v. Titus, 82 Ohio St. 171, 92 N. E. 84, company did not waive defense of forfeiture for breach of condition, where consent of agent to additional encumbrance by mortgage was not indorsed on policy; Hartman v. National Council, 76 Or. 163, L. R. A. 1915E, 152, 147 Pac. 934, acceptance by local officers of payment of arrearages of suspended member with knowledge that he was sick, does not waive provisions of by-laws and reinstate member; Lathrop v. Modern Woodmen of America, 56 Or. 450, 109 Pac. 81, under by-laws of benefit association providing that certificate was not effective until delivered, failure of applicant to pay while in good health and before accident defeated recovery on certificate; dissenting opinion in Leisen v. St. Paul Fire etc. Ins. Co., 20 N. D. 335, 30 L. R. A. (N. S.) 539, 127 N. W. 845, majority holding issuance of policy and acceptance of premium by agent, knowing insured was holder of sheriff's certificate under mortgage foreclosure sale, waived forfeiture for breach of condition requiring interest to be sole and unconditional ownership, notwithstanding restrictions in policy limiting power of agents to waive conditions. Distinguished in Neff v. Metropolitan Life Ins. Co., 39 Ind. App. 272, 73 N. E. 1048, where insured told solicitor that he would be unable to pay for policy for some time after its issuance, and solicitor told him he would settle with company and insured could pay him later, and policy was issued, and later policy returned by applicant without premium having been paid by anyone, and policy provided it should not be in force till premium paid, there was no waiver of payment by delivery of policy. Denied in People's Fire Ins. Co. v. Goyne, 79 Ark. 324, 9 Ann. Cas. 373, 96 S. W. 368, insurance company is estopped by acts of agent writing application and knowing facts to set up falsity of representations in application, although policy provides such acts of agent do not bind company; Eagle Fire Co. v. Lewallen, 56 Fla. 260, 269, 270, 272, 47 South. 951, 955, agent's acceptance of additional premium for removal of permit at time he was informed of additional insurance, and his promise to indorse on policy consent of company to such additional insurance, waives provision requiring written consent for additional insurance; Jones v. Supreme Lodge Knights of Honor, 236 Ill. 118, 127 Am. St. Rep. 277, 86 N. E. 193, subordinate lodge as agent of supreme lodge waived for 925 CARTER v. McCLAUGHRY. 183 U. S. 365-401 feiture for failure to pay assessments and dues promptly by its custom of accepting overdue payments; Davidson v. Temple of Supreme Tribe of Ben Hur, 135 Iowa, 93, 111 N. W. 47, habitual acceptance of overdue assessments by agent of fraternal insurance society with power to collect dues estops company from declaring forfeiture for failure to pay dues at maturity; Chismore v. Anchor Fire Ins. Co., 131 Iowa, 182, 108 N. W. 231, issuance of fire policy upon application showing title of insured to be sheriff's certificate of purchase at execution sale was not waiver of provision of policy that it should be void if premises remained unoccupied; Leisen v. St. Paul Fire etc. Ins. Co., 20 N. D. 326, 328, 332, 30 L. R. A. (N. S.) 539, 127 N. W. 841, 842, 844, issuance of policy and acceptance of premium by agent knowing interest in property was not fee simple waives forfeiture for breach of condition requiring interest to be sole and unconditional ownership; McClelland v. Mutual Life Ins. Co., 217 N. Y. 345, 111 N. E. 1064, delivery of policy by agent having knowledge of insured's illness was waiver of condition avoiding policy unless premium was paid while insured was in good health; Fosmark v. Equitable Fire Assn., 23 S. D. 107, 120 N. W. 779, insurer is estopped to declare policy void under stipulation requiring interest in property to be sole and unconditional ownership, where agent knew building stood on leased property and was subject to chattel mortgage, though policy prohibited agent from waiving stipulations. Effect of agent's insertion in application of false answers to questions correctly answered by insured. Note, L. R. A. 1915A, 273, 278. Retention of policy as waiver of mistake or fraud of insurer or agent. Note, 67 L. R. A. 706, 728. Effect of nonwaiver agreement on conditions existing at inception of policy. Note, 18 L. R. A. (N. S.) 853. Miscellaneous. Cited in Northern Assurance Co. v. Grand View Bldg. Assn., 203 U. S. 106, 51 L. Ed. 111, 27 Sup. Ct. 27, adjudication in action at law that insured cannot recover is not adjudication that contract cannot be reformed; Grand View Bldg. Assn. v. Northern Assur. Co., 73 Neb. 151, 102 N. W. 246, suit to reform insurance policy to express intent of parties to allow concurrent insurance may be maintained after termination of unsuccessful attempt to recover on policy; Modern Woodmen of America v. Colman, 68 Neb. 666, 96 N. W. 154, opinion of commissioners does not bind court to all that is said arguendo. 183 U. S. 365-401, 46 L. Ed. 236, 22 Sup. Ct. 181, CARTER v. MCCLAUGHRY. Civil tribunals will not revise proceedings of courts-martial except to determine jurisdiction or whether court exceeded power. Approved in Grafton v. United States, 206 U. S. 348, 11 Ann. Cas. 640, 51 L. Ed. 1089, 27 Sup. Ct. 749, soldier acquitted of homicide by military court-martial in Philippines cannot be tried subsequently for same offense in civil court of territory; Ex parte Dickey, 204 Fed. 326, denying habeas corpus to review judgment of naval court-martial imposing sentence on charge of scandalous conduct tending to destruction of good morals; Ex parte Townsend, 133 Fed. 75, judgment of court-martial sentencing deserter not reviewable by civil habeas corpus on ground of 103d Article of War prescribing two year limitation. Distinguished in McClaughry v. Dening, 186 U. S. 69, 46 L. Ed. 1058, 22 Sup. Ct. 794, holding invalidity of court-martial composed wholly of regular army officers can be shown on habeas corpus by volunteer soldier. Review of proceeding of courts-martial by civil courts. Note, 17 Ann. Cas. 446. Law governing courts-martial is found particularly in articles of war. Approved in In re Brodie, 128 Fed. 667, 63 C. C. A. 419, holding in imposing sentence court-martial is governed by enactments of Congress, especially articles of war. Whether crime is prejudicial to good order is peculiarly for court martial. Approved in In re Brodie, 128 Fed. 672, 63 C. C. A. 419, holding whether local law was impossible of attainment is question for courtmartial to determine. Conspiring to defraud government and causing fraudulent claims to be made against government are distinct offenses. Approved in Morgan v. Devine, 237 U. S. 641, 59 L. Ed. 1156, 35 Sup. Ct. 712, person breaking into postoffice and committing larceny, convicted under separate counts for violation of sections 190 and 192 of Penal Code, and sentenced separately under each, was not, after serving sentence under one court, entitled to be released on ground of twice in jeopardy, because acts charged were part of same transaction; Gavieres v. United States, 220 U. S. 343, 55 L. Ed. 490, 31 Sup. Ct. 421, person convicted under ordinance prohibiting drunkenness and boisterous language is not exempt from prosecution for insulting public officer under another ordinance, although charge is based on same conduct and language; Louie v. United States, 218 Fed. 40, 41, 134 C. C. A. 58, acquittal under indictment charging person with engaging in conspiracy to import opium is not bar to conviction under indictment charging offense of receiving and selling opium, though charging same overt act; United States v. Komie, 194 Fed. 568, holding issuing money order in violation of section 210 was not same offense as issuing orders in violation of section 218 of Penal Code of 1909, and plea of former conviction was not good as to counts charging offense under section 218; Kirkman v. McClaughry, 160 Fed. 438, 90 C. C. A. 86, holding different sentences of imprisonment imposed upon army captain by courts-martial upon distinct military charge are cumulative and denying release upon expiration of longer term 927 GUARANTEE CO. v. MECHANICS' ETC. CO. 183 U. S. 402-424 Conduct unbecomining officer and gentleman in violation of sixty-first article of war is not same offense as violation of offense charged under sixtieth article of war. Approved in State ex rel. Poole v. Nuchols, 18 N. D. 241, 20 L. R. A. (N. S.) 413, 119 N. W. 635, denying writ of prohibition to court-martial to prevent trial of member of national guard. Identity of offenses in a plea of former jeopardy. Note, 92 Am. St. Right to convict for several offenses growing out of same facts. Article 60 provides for punishment by fine or imprisonment or as courtmartial shall adjudge. Approved in In re Brodie, 128 Fed. 671, 63 C. C. A. 419, holding in imposing sentence court-martial is governed by enactments of Congress, especially articles of war; In re Langan, 123 Fed. 134, holding word "imprisonment" as used in sixtieth article of war empowers court-martial to sentence to imprisonment in penitentiary. 183 U. S. 402-424, 46 L. Ed. 253, 22 Sup. Ct. 124, GUARANTEE CO. v. MECHANICS' SAVINGS BANK & T. CO. Rule of liberal construction will not be used to refine away terms of contract. Approved in American Bonding Co. v. Baltimore etc. R. R. Co., 124 Fed. 881, 60 C. C. A. 52, holding provisions of contracts prepared for itself by surety company construed in favor of insured and contract is assignable; Carstairs v. American Bonding etc. Co., 116 Fed. 453, 54 C. C. A. 85, holding certificate of treasurer in employer's behalf stating faithful performance of duties by manager containing material misstatement avoided bond; Granite Bldg. Co. v. Saville, 101 Va. 223, 224, 43 S. E. 353, holding where terms of contract of suretyship require employer to give notice of claim, such notice is condition precedent to recovery. While contract of indemnity is to be construed against surety, court cannot go further than fair construction of language will permit. Approved in American Bonding Co. v. Morrow, 80 Ark. 54, 117 Am. St. Rep. 72, 96 S. W. 615, recovery on bond indemnifying bank against default of cashier, which provided for renewal and that liability should not be cumulative, was limited to amount specified in bond; John Church Co. v. Aetna Indemnity Co., 13 Ga. App. 832, 835, 80 S. E. 1095, 1097, renewal of bond guaranteeing fidelity of employee continues liability for amount of bond and does not add new and distinct liability; North British etc. Ins. Co. v. Tye, 1 Ga. App. 389, 58 S. E. 114, contract insuring two-story frame building will not be construed to include servant's house one hundred and fifty feet distant; T. M. Sinclair & Co. v. National Surety Co., 132 Iowa, 559, 107 N. W. 188, construing fidelity bond insur |