lief are not considered material, and the insurer has no right to rely upon them. 250. Warranties.-An express warranty is a statement of fact, or a promise inserted in the policy itself or incorporated by reference relating to the subject of the insurance or to the risk. It must be literally and strictly complied with. It differs from a representation in that the latter is a collateral inducement outside the contract and requires only substantial compliance. If a misrepresentation is deemed by a jury to be immaterial, its falsity will not work a forfeiture of the policy. The statutes of some states provide that warranties are in effect but representations. The fact that the insured is unable to comply with the requirements of his warranties is no excuse for their non-performance. If an insurance company accepts an application which is partially or wholly unanswered, there will be no breach of warranty, for the company should demand fuller information. This rule, however, cannot be used by the applicant to justify bad faith, or an attempt to evade, mislead or conceal. The courts of most states hold that a temporary breach of warranty, though it does not continue up to the time of loss, will avoid the policy. 251. Waiver and estoppel.-A waiver is an intentional relinquishment of a known right. An estoppel is the performance of an act or the making of a statement by a person, under such circumstances that justice and good faith require that he be debarred from asserting any right or title in opposition to a right acquired in reliance upon such act or statement. One authority has said: Any unequivocal and positive act of the company recognizing the policy as valid, and after a knowledge of its breach, or any act that puts the insured to unreasonable expense or trouble in the justifiable belief that the company still regards the policy as valid, will estop the company from taking advantage of the forfeiture. Sometimes policies contain a clause providing that a breach of condition can be waived only by written waiver of the insurer. The courts have held, however, that if the insured deals with a proper and qualified agent, the latter may waive this requirement orally, so that this condition and the breach may be orally waived at the same time. EXAMPLE 265. B issues a policy of fire insurance to A, which provides that the policy will be void if the building is erected on leased land. If B knew before the policy was issued that the land was leased, the condition would be waived by the issuance. If B obtained knowledge of the fact a day after the policy were issued, it would be void unless the instrument were treated as valid by a subsequent act, such as the acceptance of a premium. The provisions of a general statute cannot be waived nor can new subject-matter be substituted under the doctrine of waiver and estoppel. Future performance of a condition will not be waived by a prior waiver of the same condition. Whether the representative of the insurer has authority to waive a condition in the policy is often difficult to ascertain. Officers and general managers usually have this authority, and so an agent, to take insurance, usually has authority to waive stipulations at the time the insurance is taken, but not subsequently. In the case of fire insurance, however, a soliciting agent has no authority to waive conditions or forfeitures, but may only receive proposals and forward them. If, however, they close the contract and settle the policy they usually have implied authority to waive stipulations as to the time of paying the premium. The authority of agents to waive conditions is often set forth in the policy, which under ordinary circumstances is binding in this respect. 252. Special rules of marine insurance.-Policies of marine insurance contain three warranties which are implied by law if not expressly set forth. The insured warrants that the ship is seaworthy, that there will be no voluntary deviations from the specified route, and that the purpose of the adventure is legal. EXAMPLE 266. A insures his ship in the B company for three years. At the end of two years the ship becomes unseaworthy and is lost. A cannot recover because there was an implied warranty in the "time policy" that the ship would be kept seaworthy. If at the time the last premium was paid to the insurer A had notified it of the condition of his vessel, and the company had demanded a double premium which A had paid, the company could not successfully defend an action to recover the loss on the ground of a breach of implied warranty of seaworthiness. If both parties act in good faith, a policy may be taken on a vessel "lost or not lost," and the policy will be good even if the vessel at the time is not in actual existence. The voyage is understood to be terminated when the vessel arrives at her port of destination and has been moored there twenty-four hours. General average is a contribution by all the parties in a sea adventure to loss suffered for the common benefit. In such cases, where any sacrifice is deliberately and voluntarily made or any expenses fairly incurred to prevent total loss, or some greater disaster, it is but just and right that the sacrifice or expense should be borne proportionately by the respective owners of the ship, the freight and the cargo. The captain of a ship in time of danger becomes the agent of the insurance company. EXAMPLE 267. A's ship is insured for $5,000 and becomes imperiled. Its captain "sues and labors" for aid and incurs an additional expense of $3,000. In spite of the aid, the ship is lost. The insurance company may be compelled to pay $8,000. 253. Notice and proof of loss in fire insurance.— Most fire policies provide that the insured shall give the insurer immediate notice in writing of a fire and furnish the company with satisfactory proof of loss within sixty days. Such terms as "immediate notice" and "notice forthwith" mean that the insured shall use reasonable diligence. Most of the conditions of fire insurance policies must be strictly conformed to and insanity or other disability furnishes no excuse for a violation, but this rule is relaxed in respect to the requirement of preliminary notice of loss. Where the insured offers proof of loss in good faith, which he believes to be sufficient, but which in fact is defective, the company is bound to make prompt objection. Policies often require also that suit must be commenced within a stated period after the fire,-usually twelve months. 254. Life insurance.-Life insurance differs from other forms of insurance in that it is not strictly a contract of indemnity. The policy of life insurance usually provides that it does not cover death by suicide, or execution for crime. In the absence of such provision, |