Where an insurance agent with authority to accept risks, receive premiums, and issue policies, exercises such authority with knowledge of the existence of concurrent insurance on the insured property, the company is estopped after loss to insist that the policy is void because consent to such concurrent insurance was not given in writing. Knowledge of the agent in such case will be imputed to the company, and that which the insurer knew when engaging in the venture it will be presumed to have as sented to. Mr. Halleck F. Rose argued the cause, | Dec. 65; Farmers' Mut. Ins. Co. v. Taylor, and, with Mr. Joseph R. Webster, filed a 73 Pa. 342; Light v. Countrymen's Mut. F. brief for respondent: Ins. Co. 169 Pa. 316, 32 Atl. 439; Swain v. Macon F. Ins. Co. 102 Ga. 96, 29 S. E. 147; Hobkirk v. Phanix Ins. Co. 102 Wis. 13, 78 N. W. 160; American Ins. Co. v. Luttrell, S9 Ill. 314; North British & M. Ins. Co. v. Steiger, 26 Ill. App. 228; King County F. Ins. Co. v. Swigert, 11 Ill. App. 590; Insurance Co. of N. A. v. McDowell, 50 Ill. 120, 99 Am. Dec. 497; First Nat. Bank v. American Cent. Ins. Co. 58 Minn. 492, 60 N. W. 345; Brandup v. St. Paul F. & M. Ins. Co. 27 Minn. 393, 7 N. W. 735; Insurance Co. of N. A. v. Coombs, 19 Ind. App. 331, 49 N. E. 471; Collins v. Farmville Ins. & Bkg. Union Mut. L. Ins. Co. v. Wilkinson, 13 Co. 79 N. C. 279, 28 Am. Rep. 322; Grubbs v. North Carolina Home Ins. Co. 108 N. C. Wall. 232, 20 L. ed. 617; Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 234, 24 L. ed. 472, 13 S. E. 236; Gandy v. Orient Ins. Co. 689; Eames v. Home Ins. Co. 94 U. S. 621,52 S. C. 224, 29 S. E. 655; Schroeder v. 24 L. ed. 298; Hartford L. Annuity Ins. Co. Springfield F. & M. Ins. Co. 51 S. C. 180, 28 v. Unsell, 144 U. S. 439, 36 L. ed. 496, 12 S. E. 371; McBryde v. South Carolina Mut. Sup. Ct. Rep. 671; Putnam v. Common-Ins. Co. 55 S. C. 589, 33 S. E. 729; Phenix wealth Ins. Co. 18 Blatchf. 368, 4 Fed. 754; Glover v. National F. Ins. Co. 30 C. C. A. 95, 42 U. S. App. 728, 85 Fed. 125; Fire man's Fund Ins. Co. v. Norwood, 16 C. C. A. 136, 32 U. S. App. 490, 69 Fed. 71; Northern Assur. Co. v. Grand View Bldg. Asso. 41 C. C. A. 207, 101 Fed. 77; London & L. F. Ins. Co. v. Fischer, 34 C. C. A. 503, 92 Fed. 500; McElroy v. British America Assur, Co. 36 C. C. A. 615, 94 Fed. 990; Palatine Ins. Co. v. McElroy, 40 C. C. A. 441, 100 Fed. 391; Pitney v. Glen's Falls Ins. Co. 65 N. Y. 6; Pechner v. Phenix Ins. Co. 65 N Y. 195; Short v. Home Ins. Co. 90 N. Y. 16: Robbins v. Springfield F. & M. Ins. Co. 149 N. Y. 484, 44 N. E. 159; Wood V. American F. Ins. Co. 149 N. Y. 385, 44 N. E. 80; Niagara F. Ins. Co. v. Johnson, 4 Kan. App. 16, 45 Pac. 789; Home Ins. Co. v. Wood, 47 Kan. 521, 28 Pac. 167; State Ins. Co. v. Gray, 44 Kan. 731, 25 Pac. 197; National Mut. F. Ins. Co. v. Barnes, 41 Kan. 161, 21 Pac. 165: Hamilton v. Home Ins. Co. 94 Mo. 353, 7 S. W. 261; McCollum v. Hartford F. Ins. Co. 67 Mo. App. 76; Ins. Co. v. Covey, 41 Neb. 724, 60 N. W. *Mr. Justice Shiras delivered the opinion [310] of the court: In order that the questions discussed in this case and the grounds of our judgment therein may sufficiently appear, it seems proper to set out, with substantial fulness, the pleadings of the parties and the special verdict of the jury. The plaintiff's petition, having alleged the years, which insurance was then subsisting 215 waive the condition of said policy that 'it above set forth and without the consent of shall be void if the insured now has or shall the defendant indorsed upon said policy in hereafter make or procure any other contract writing, and without the knowledge of the of insurance' on the property covered thereby. defendant, the plaintiff obtained a policy of And by the aforesaid several acts and by pro-insurance, upon the property covered by the curing, receiving, accepting, and retaining policy issued by this defendant, in the sum of said insurance premium with knowledge of $1,500 in the Firemen's Fund Insurance of said subsisting concurrent insurance the Company. defendant has waived the said condition and is estopped to claim benefit thereof, and is bound by its said policy notwithstanding said condition; that plaintiff had no insurance on said property except as before stated." Having stated that plaintiff had rendered and delivered a statement of loss, in compliance with the terms of the policy, the petition further alleged that "on the 26th day of July, 1898, the plaintiff demanded of defendant the payment of said insurance; and defendant, disregarding its undertaking in that behalf, denies liability on the sole ground that said policy has been void from the date of its issue by reason of the said provision in regard to other insurance, the same provision which as aforesaid it had waived at the time of issuing its said policy." The answer of defendant admitted the making of the policy, the destruction of the insured property by fire, and proof of loss, but denied specifically the allegations of the fourth paragraph of said petition, as follows: "Further answering, this defendant alleges that the policy of insurance which it issued to the plaintiff on December 31, 1896, contained the following provision: "Defendant says that the property upon which it issued its policy in the sum of $2,500 was represented by the plaintiff to the defendant to be of the value of $3,500. The defendant alleges that by reason of the additional insurance upon said property, not consented to in writing indorsed upon the policy of defendant, and not in fact known to the defendant, the policy written by the defendaut upon the plaintiff's property was, at the date of the fire which damaged or destroyed the plaintiff's property, wholly void, and was and has been void from the date of such additional assurance. Defendant further says that on the 5th day of August, 1898, the defendant tendered to the plaintiff in current fund the sum of $33.75, the amount of the premium paid by the plaintiff upon the policy in question, and now brings into court and tenders to the plaintiff the said sum of $33.75, with interest at the rate of 7 per cent from December 31, 1896." The plaintiff company replied to the answer, denying that it *procured a policy of[313] insurance in the Firemen's Fund Insurance Company upon the property insured by defendant in violation of the terms of the policy issued by defendant and without the knowledge of defendant, and made the fol ""This entire policy, unless otherwise provided by agreement indorsed hereon or add-lowing allegations: ed hereto, shall be void if the insured now "The policy referred to in said answer of has or shall hereafter make or procure any $1,500 in the Firemen's Fund Insurance Comother contract of insurance, whether valid or pany was, on the contrary, subsisting at and not, on property covered in whole or in part prior to the issuance by defendant to the by this policy. The defendant further says plaintiff of the policy sued on herein, and that its policy in question was issued to the was in fact issued December 12, 1895, for the plaintiff with the express statement therein term of three years, and the existence of such made that it was issued in consideration of policy was personally well known to A. D. the 'stipulations' therein named and a cer: Borgelt, defendant's recording agent, who tain amount of premium paid therefor. And wrote said policy, and accepted said risk, [312]said policy, besides the provisions above and who then had full charge of defendant's quoted, contains the following stipulation agency at Lincoln, Nebraska, with authority and condition: "This policy is made and acto accept fire insurance risks for and on cepted subject to the foregoing stipulations defendant's behalf, to countersign and issue and conditions, together with such other pro- its policies of insurance, and to collect and visions, agreements, or conditions as may be receive the premiums therefor. And at and indorsed hereon or added hereto, and no of prior to his acceptance of said risk and inficer, agent, or other representative of this surance of the policy sued on, the plaintiff's company shall have power to waive any pro- president, H. J. Walsh, reported orally to vision or condition of this policy except such said A. D. Borgelt the fact of such subas by the terms of this policy may be the sisting insurance of $1,500, and said Borsubject of agreement indorsed herein or gelt, as such agent, with full knowladded thereto, and as to such provisions and edge of said fact, accepted the risk, and conditions no officer, agent, or representative wrote, executed, and delivered said policy shall have such power or be deemed or held to defendant, with the intent on the part to have waived such provisions or conditions of both plaintiff and defendant that the unless such waiver, if any, shall be written same should be concurrent with the said upon or attached hereto, nor shall any priv- subsisting insurance and not avoided or af ilege or permission affecting the insurance fected thereby, and with purpose and intent under this policy exist or be claimed by of defendant knowingly to waive and forego the insured unless so written or attached.' all benefit of the provisions of said policy The defendant says that notwithstanding the set forth in defendant's answer; and in stipulations, provisions, and agreements faith thereof and with the sole purpose to procure such insurance to be concurrent with "This policy is made and accepted subject In support of its side of the issues thus [314] presented, the plaintiff company called as witnesses H. J. Walsh, its president, and Bert Richards, the agent of the Firemen's Fund Insurance Company, who testified that Borgelt was informed by them and had knowledge of the subsisting insurance at and before the delivery of the policy in suit. The plaintiff likewise put in evidence the original policy sued on, and a letter from G. H. Lermit, manager of the defendant company at Chicago, Illinois, and who had signed the policy in suit as such agent, in the terms following: Chicago, Aug. 2, 1898. To Grand View Building Association, H. J. Walsh, President, Lincoln, Nebraska. Dear Sirs: We have your favor of the 26th ult., inclosing to us what purports to be proof of loss, making claim under our policy No. 310,024, of Lincoln, Nebraska, agency, and issued to you for $2,500 on household furniture, etc., while contained in the threestory brick and stone building on lot F in Grand View Residence Park addition, on account of a fire which occurred on the 1st day of June, 1898, and beg to say in reply that your sworn statement therein advises us that you had other insurance on this same property to the amount of $1,500. This additional insurance held by you was without the knowledge or consent of this company, and was not permitted by agreement as provided for in lines Nos. 11, 12, and 13 of the printed conditions of our policy, to which we beg to refer you. We therefore regret to have to advise you, and do hereby say to you, that the Northern Assurance Company specifically and absolutely denies any and all liability under said policy No. 310,024 held by you, holding that said policy has been void from the date of its issuance by reason of the said provision in regard to other in surance above referred to. Our agents at Lincoln have been instructed to return to you the full premium paid them by you, namely, $33.75, at once. The plaintiff further offered the original policy in evidence, containing, among other things, the following provisions: "This entire policy, unless otherwise provided by agreement indorsed hereon or added [315]hereto, shall be void if the insured *now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." terms of this policy may be the subject of The defendant, to maintain the issues on The jury, under the instructions of the court, found that the defendant company issued to the plaintiff company the policy described in the plaintiff's petition; that the property covered by said policy of insurance 316] was burned on or about June 1. 1898: *that the plaintiff, on or about July 26, 1898, furnished the defendant with proofs of the loss of said property by fire; that the policy contained the provision hereinbefore mentioned, providing that the policy should be void if the insured had or should thereafter make or procure any other contract of insurance on the property covered by the policy in suit, and that the policy was made subject to such condition, and that no officer, agent, or other representative of the company should have power to waive any provision or condition of the policy except such as by the terms of the policy had been indorsed thereon or added thereto, and that no oflicer, agent, or representative of the company should have power or be deemed or held to have waived such provision or condition unless such waiver was written upon or attached to the policy, and that no privilege or provision affecting the insurance under the policy should exist or be claimed by the insured, unless so written or attached; that there was at the time of the issuance of the policy in suit other such other provisions, agreements, or con- sentative of this company shall have power Thereafter motions were respectively made by the plaintiff and defendant for judgment upon the findings and special verdict [317]of *the jury, and on January 14, 1899, the motion of the defendant was overruled, and exception was taken by the defendant, and the motion of the plaintiff was sustained, and judgment was entered in favor of the plaintiff and exception was taken by the defendant. A writ of error was prayed for by the defendant and allowed, and the cause was taken to the United States circuit court of appeals for the eighth circuit, where the judgment of the circuit court was affirmed, and the cause was then brought to this court by a writ of certiorari. Over insurance by concurrent policies on the same property tends to cause carelessness and fraud, and hence a clause in the policies rendering thein void in case other insurance had been or should be made upon the property and not consented to in writing by the company, is customary and reasonable. In the present case, such a provision was expressly and in unambiguous terms contained in the policy sued on, and it was shown in the proofs of loss furnished by the insured, and it was found by the jury, that there was a policy in another company outstanding when the present one was issued. It also was made to appear that no consent to such other insurance was ever indorsed on the policy or added thereto. Accordingly it is a necessary conclusion that by reason of the breach of the condition the policy became void and of no effect, and no recovery could be had thereon by the insured unless the company waived the condition. The question before us is therefore reduced to one of waiver. The policy itself provides the method whereby such a waiver should be made: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with Before proceeding to a direct consideration of the question before us, it may be well to inquire into the principles established by the authorities as applicable to such cases. It is a fundamental rule, in courts both of evidence is inadmissible to contradict or vary the terms of a valid written instrument. This rule is thus expressed in Greenleaf on Evidence, 12th ed. § 275. "When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected." The rule is thus expressed by Starkie, Ev. 9th Am. ed. 587: "It is likewise a general and most inflexible rule, that wherever written instruments are appointed, either by the requirement of law, or by the compact of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used, either as a substitute for such instruments or to contradict or alter them. This is a matter both of principle and policy; of principle, because such instruments are in their nature and origin entitled to a much higher degree of credit than parol evidence; of policy, because it would be attended with great mischief if those instruments upon which men's rights depended were liable to be impeached by loose collateral evidence." This rule has always been followed and applied by the English courts in the case of policies of insurance in writing. Thus in Weston v. Emes, 1 Taunt. 115, it was held that parol evidence of what passed at the time of effecting a policy is not *ad-[319] missible to restrain the effect of the policy, Mansfield, Ch. J., observing that such "evidence could not be admitted, without abandoning in the case of policies, the rule of evidence which prevails in all other cases; and that it would be of the worst effect if a brok- | condition, the policy ceased and became of In Robertson v. French, 4 East, 130, it was held, per Lord Ellenborough, in a suit on a marine policy of insurance, that a parol agreement that the risk should begin at a place different from that inserted in the policy, cannot be received in evidence. These cases are cited as establishing the rule in cases of insurance in Marshall on Marine Insurance, 278, and in 1 Arnould on Insurance, p. 277. In Flinn v. Tobin, 1 Moody & M. 367, Lord Tenterden, Ch. J., said that "the contract between the parties is the policy which is in writing, and cannot be varied by parol. No defense, therefore, which turns on showing that the contract was different from that contained in the policy, can be admitted; and this is the effect of any defense turning on the mere fact of misrepresentation without frand." So, where, in assumpsit for use and occupation, upon a written memorandum of lease, at a certain rent, parol evidence was offered by the plaintiff of an agreement at the same time to pay a further sum, being the ground rent of the premises, to the ground landlord, it was rejected. Preston v. Merceau, 2 W. Bl. 1249. And where, in a written contract of sale of a ship, the ship was particularly described, it was held that parol evidence of a further descriptive representation, made prior to the time of sale, was not admissible to charge the vendor without proof of actual fraud: all previous conversations being merged in the written contract. Pickering v. Dowson, 4 Taunt. 779. See also Powell v. Edmunds, 12 East, 6; Smith v. Jeffryes, 15 Mees. & W. 561; Gale v. Lewis, 9 Q. B. 730; Acey v. Fernie, 7 Mees. & W. 151. The case of Western Assur. Co. v. Doull, 12 Can. S. C. 446, was one where a policy of insurance against loss by fire contained the following condition: "In case of subsequent [320]assurance, *notice thereof must also be given in writing at once, and such subsc quent assurance indorsed on the policy granted by this company, or otherwise acknowledged in writing; in default whereof such policy shall thenceforth cease and be of no effect." In discussing the question of the power of the agent to waive the condition, the court said: "It is not shown that it was within the scope of Greer's authority as a local agent to waive such a condition. The condition itself does not, either by express words or by implication, recognize such an authority, but the reason for requiring the notice obviously points to a directly contrary construction. Moreover, the English case already quoted [Gale v. Lewis, 9 Q. B. 730], which determines that the required notice is to be given to the company itself and not to the local agent, shows, a fortiori, that such an agent has, in the absence of express authority, no power to waive the condition. Direct authority is, however, not wanting. In the case of Shannon v. Gore Dist. Mut. F. Ins. Co. 2 Ont. App. Rep. 396, the facts were the same as in the present case, the subsequent assurance having been effected through the agent who also acted for the defendants in taking the original risk. It was contended that the successive insurances having been thus effected with the same person as the agent of the two companies, the company which granted the first policy had knowledge of the subsequent *insurance, and were there-[321] fore estopped from setting up a condition vitiating the policy for want of a written notice. But the court of appeal held otherwise, and determined that in such a case notice to the agent was not notice to the company, and that the agent neither had authority to waive the condition nor could by his conduct estop his principals, the first insurers. As regards any direct action of the appellants [insurance company] through their immediate agents, the directors or principal officers of the company conducting its affairs at the head office, there is no pretense for saying that there is in the present case the slightest evidence of conduct upon which either a defense of waiver of the condition, or by way of estoppel against insisting upon it, can be based, and this for the very plain reason that these directors and officers never had the fact of a subsequent assurance brought to their knowledge, and without proof of such knowledge neither waiver nor estoppel can be made out." "The condition in the policy is one which must be complied with or waived. The company, by signing a condition of that kind, reserves to itself the right to withdraw the policy in case of further insurance. That question is one which cannot be decided by a mere local agent. He may receive the notice for transmission, but he cannot act on it; it must be brought to the notice of some person author The insured effected subsequent insurance and verbally notified the agent, but there was no indorsement made on the policy, nor any acknowledgment in writing by the company. A loss having occurred, the damage was adjusted by the inspector of the company, and neither he nor the agent made any objection to the loss on the ground of noncompliance with the above condition. In a suit to recover the amount of the policy the company pleaded breach of the condition, in reply to which the plaintiff set up a waivized by the company to continue the insurer of the condition and contended that by the act of the agent and inspector the company was estopped from setting it up. It was held by the supreme court of Canada that the insured not having complied with the ance after notice has been given them. It |