
    The Stark County Mutual Insurance Company v. Edwin C. Hurd.
    Where the charter or by-laws of a Mutual Insurance Company provide that the president and secretary may give leave to effect additional insurances in other companies, and point out no other mode of giving the consent of the company, it is error to charge the jury that such consent may be given by a director or the secretary.
    This is a writ of error to the Court of Common Pleas of Stark county.
    Hurd brought an action of assumpsit in the court below, against the said company, on a policy of insurance. The policy, which had been assigned to the plaintiff below, was given to Frederick N. Hurd and Charles Lathrop, by the name of Lathrop & Hurd, who were thereby insured to the amount of $2,500, upon their stock of goods, contained in the store occupied by them in Akron.
    The plaintiff’s declaration contained a special count upon the policy, with the.common money counts.
    The plea was the general issue, to which was attached a notice, containing,- amongst other matters of defense, an averment that the plaintiff had procured from another company, the Lexington Insurance Company, an insurance of $2,500, upon the property in the declaration mentioned, which was subsisting and íd force at the time the property was destroyed by fire.
    From the exhibits accompanying, and made part of the bill of exceptions, which was taken during the progress of the case, the following facts appear.
    In the policy of insurance there is this provision:
    “ This policy is made and accepted, subject to the conditions hereto annexed, which are hereby made a part hereof.”
    Among the conditions is the following:
    
      “ If insurance on the same property, insured by this policy, or any part thereof, shall, at the date thereof, or during its continuance, subsist in any other company, without the consent of this company, this policy shall be void.”
    Sec. 7 of the act of incorporation (attached to the policy), provides that within twenty days from the time of the loss or damage by fire, the insured shall give notice in writing,'to the directors or to the secretary, of such loss or damage.
    Sec. 4 of the same act, provides that the board of directors shall superintend the concerns of the company, and have the management of the funds and property thereof, and all matters and things thereunto relating and not otherwise provided for by said company; they shall have the power, from time to time, to appoint a treasurer, secretary and such other officers, agents and assistants as to them may seem necessary, and prescribe their duties etc.
    
    Among the by-laws of the company is the following :
    “ The president and secretary may, in behalf of the company, give leave to effect additional insurances in other companies, on buildings or other property insured by this company, not in any case, however, for a greater sum or amount than the differ ence between the sum insured by this company, and two-thirds the estimated value of the buildings or other property so insured, and also to indorse such leave on the policy issued by this company' — the same to be recorded in a book provided for that and other purposes.”
    The only power conferred upon the agents of the company, in cases of fire, is the following, extracted from their instructions made out- by order of the company:
    “ Should a fire occur in your agency, you will notify the secretary thereof forthwith, and you will be expected to repair to the scene of destruction, and learn how the fire commenced, and where; whether the loss is fair, whether the conditions of the policy .have been complied with, and what amount of damage has been sustained; all which you will report to the secretary as early as practicable.”
    
      It was admitted on the trial, that the plaintiff had effected an additional insurance in the Lexington Insurance Company, for $2,500, but it was claimed by him that the defendant had given its consent to the second insurance. To prove this, the plaintiff introduced the testimony of witnesses who stated that, D. B. Hadley, the agent of the company, residing in Akron, had informed the clerk and agent of the plaintiff, who had the charge of the business of the plaintiff, that he was authorized by the directors of the company, to give its consent to the second insurance, and that he had done so before the goods were burned.
    Hadley testified that he had never, on behalf of the defendant, given its consent to the second insurance, that he had no authority to give such consent, and that he so informed the plaintiff’s clerk.
    The secretary of the company testified, that there were no by-laws of the company authorizing the agents of the company to give the consent of the company in such cases. He stated that application had been made at his office to obtain the consent of the company, after the second insurance had been effected, that he was informed the policy issued by the company was in New York, so that the proper, indorsement could not be made upon it, and that after he had consulted some of the directors, he wrote to Hadley to investigate the matter, and if he found it all right, to give the consent of the company. Before his letter reached Hadley, the goods were burnt, but whether they were burnt before the letter was left at the post office, did not clearly appear.
    Within twenty days from the time of the fire, the plaintiff made out a notice of the loss, in due form, which he delivered to Hadley, and gave testimony tending to prove that Hadley agreed to send the notice to the secretary of the company. Hadley testified that he received thé notice within the twenty days, but stated that he had not agreed to send the notice to the secretary, and that he had not been requested to do so. The notice was not delivered to the secretary or to any of the directors of the company till after the expiration of twenty days.
    The jury returned a verdict for the plaintiff, and a motion having been made for a new trial, was overruled, and exceptions taken.
    Exceptions were also taken to the instructions of the court, which were as follows:
    1. That the notice of loss required to be given to the defendant, might be waived by the authorized agent of the company, and whether it had been waived was a question of fact for the jury.
    2. That whether the agent had power to receive or waive notice, depended upon the proof as to his- authority.
    8. That if the notice of loss was given to Hadley, the agent; and he undertook to convey it to the officers of the company, it was sufficient.
    
      4. That, by the insurance in the Lexington company, the policy issued by the Stark county company did not become void, but only voidable, and so far void that the defendant could take advantage of it, if it had not subsequently consented to the second insurance.
    5. That this consent might be given by an authorized agent of the company by parol, but that the plaintiff must prove that the agent was authorized to give such consent.
    6. That authority to give such consent might be given to an agent by a director, or by the secretary of the company, and that this authority might be given by parol.
    7. That though the plaintiff practiced a fraud upon the Lexington company, by obtaining an insurance for an amount which, with the insurance in the Stark county company, was larger than the value of the goods, if the defendant, by its authorized agent, afterwards consented to the second insurance, such fraud was no defense to the action.
    The errors assigned are as follows:
    1. The court erred in charging the jury, that notice of the loss by fire, required by the charter'of the company, to be given in writing, might be waived by the agent of the company.
    2. The court erred in charging the jury, that if notice of the loss had been given to Hadley, the agent of the company, and he undertook to convey it to the officers of the company, it was sufficient.
    8. The court erred in charging the jury, that by the insur anee in the Lexington company, without the assent of the plain tiff in error, its policy did not become void.
    4. The court erred in charging the jury, that the assent of the plaintiff in error to the insurance in the Lexington company might be given by an agent of the plaintiff in error by parol.
    5. Thé court erred in charging the jury, that authority to an agent to give such assent, might be given by a director of the company, or by its secretary, and that this authority might be given by parol.
    6. The court erred in charging the jury, that fraud in obtaining the second insurance was no defense in an action against the plaintiff in error, if the plaintiff subsequently assented to the second insurance, although by such fraud the defendant in error became insured in an amount larger than the value of his goods-
    7. The court erred in refusing to grant a new trial.
    
      Qriswold and Hazlett, for plaintiff in error.
    The judgment should be reversed, because of error on the part of the court of common pleas, in charging the jury, in several particulars.
    1. The notice of loss, required by the charter to be given to a director, or to the secretary, in writing, cannot be waived by an agent of the company.
    The insured and' the insurer are but parts of one and the same company, having mutual rights and interests. They, together, make “ the company.” The charter is the sole authority of their existence as a company, and it defines the rights and duties of its members. It is the law of their existence. And it provides that notice shall be given in writing, to a director or to the secretary. The defendant in error was a member of a company, whose charter he knew contained this provision. Why should he not be bound by it ?
    We are aware cases may be found in which-the preliminary proof has been held by the courts and juries to be waived, or rather considered as admitted, and therefore the actual proof was dispensed with. But they are all, we believe, cases of joint stock companies, where the interests of the parties were adverse, where the insured had- been thrown off his guard by the company, etc. We will consider them more fully under the head of error in refusing to grant a new trial, and will then contend there is no evidence of waiver of notice, or that defendant in error considered it waived.
    But here, we rely on the point that it must, as required by the charter, be given in writing, and within twenty days from the time of the fire.
    2. The third error assigned is partly embraced in the second. For, if notice must be given in writing to a director or to the secretary, the charter is not complied with by giving it to a mere agent. Nor can he waive the notice ; nor will his undertaking to transmit it to the proper officer be deemed a compliance with the provisions of the charter.
    But this objection to the charge of the court, reaches farther than the previous one in this: that it attacks the principle laid down by the court, that the act of the agent was binding upon the company, though the charter, by-laws and instructions of the company conferring his powers and authority upon him, give him no such authority as it is here claimed he may exercise.
    3. The insurance having been made in the Lexington company, without the previous consent of the plaintiff, its policy became thereby void.
    We claim that by the mere act of taking that insurance, the policy issued by the plaintiff became absolutely void— 
      functus officio — so that vitality could not be given to it after-wards by any act of any officer of this company — the only means of continuing, or rather effecting, an insurance in this company, being by obtaining a new policy.
    On this point the language of the condition annexed to the policy is clear and conclusive:
    “ If insurance on the same property insured by this policy, or any part thereof, shall, at the date thereof, or during its continuance, subsist in any other company, without the consent of this company, this policy shall be void.”
    
    Now, as it is not pretended that the consent of this company had been given, or even asked, when the insurance was effected in the Lexington company, it follows, necessarily, that unless some peculiar reason exists why a Mutual Insurance company should not be permitted to make its own contracts with its own members — a part of itself — the policy issued by the plaintiff ceased to exist, or to have any binding force upon any’one.
    
      “ This policy shall be void.” Stronger language cannot be used; and unless this shall receive the construction contended for, the company may cease to adopt rules and regulations, for the government of itself or its members.
    We refer the court to the following authorities:
    
      Jackson v. Massachusetts Mutual Fire Insurance Company, 28 Pick. Rep. 418. In this case the Massachusetts company was sued upon a policy, one of the conditions of which contained this clause: “ And when a subsequent insurance shall be made, by any other company, or by any person, on property insured in this office, without the consent of the president in writing, and according to the terms in such consent expressed, it shall ipso facto annul the policy, and the premium become forfeited to this company.”
    The plaintiff subsequently procured an insurance in the National Insurance Company, and in the condition annexed to that policy, there was this clause:
    
      “ If the assured shall have made, or shall hereafter make, any other insurance upon the said property, without the knowl edge and consent of said company, etc., the risk hereupon shall cease and determine, and the policy be null and void, unless confirmed by a new agreement thereupon written, after a full knowledge of such facts and circumstances.”
    No allusion was made in the last policy to the insurance made by defendant.
    No notice was given to the defendant or its officers, of the policy effected at the National office.
    The defendant contended that the action would not lie against it, because of the second policy. But the court held otherwise, because the second policy “ was wholly void and inoperative;” “ wholly nugatory and of no effect.”
    Why is not the insurance of the plaintiff in error also “ void and inoperative,” and its policy “ nugatory and of no effect ”?
    
      Cockerill v. Cincinnati Mutual Insurance Company, 19 Ohio Rep. 148, is more clearly in point, and more conclusive of the case.
    The plaintiff in that case was insured in the Cincinnati Mutual, and while so insured, his boat — the subject of the insurance — was sold at a judicial sale, for a debt which existed against her, previous to his purchase, and without his consent. He asked of the defendant a return of the premium note, which was refused, but the defendant agreed that if the boat came again to be the property of the plaintiff, the defendant would waive the forfeiture, and the policy should continue to the end of the time. The plaintiff did repurchase the boat, after which she was burnt, and the action was brought upon the policy.
    The court held the action would not lie. The policy was terminated, defeated, made void by the sale. And such being the case, if it could never operate again, which the court do not say could be done, it could only be by virtue of a “ waiver of the forfeiture,” and this must, say the court, by all the authorities, be in writing.
    
    
      4. But granting that there was sufficient vitality left in the first policy, after the second had been effected, to admit of a resuscitation, still the court erred in charging that the consent of the defendant to the second insurance might be given by an agent of the company, by parol.
    (1.) An agent such as Hadley, has no authority to give the consent of the company, in any way.
    Section 4 of the charter, names the officers of ‘the company, and defines their duties. No other officers being appointed, and no powers specially delegated to those there named, such consent could only be-given by the directors. The provision is imperative in its terms.
    But they may appoint other officers, and prescribe their duties.
    
    They have appointed agents, and the record shows what powers have been conferred upon them — in what their agency consists. In cases of this description, they have no power whatever. The plaintiff below, as a member of the company, is supposed to know this as well as the directors. Indeed he was so informed by the agent.
    The only authority conferred by the directors on any of the officers of the company, is delegated to the president and secretary. And this, it will be seen, is a joint power. Neither can act alone, but the two together “ may give leave to effect additional insurance, in other companies.”
    And this, it will be perceived, is a power to give leave in advance ; it does not authorize them to give their consent, after the second insurance shall have been effected.
    And such leave shall be “ indorsed on the policy issued by this company.”
    Hence it is clear that a mere agent of the company has no power to give the consent of this company, either before or after the second insurance is effected, and that the president and secretary are only authorized to give that consent in advance, and that such consent must be indorsed on the policy issued by this company. The directors, whose duty it is to “ superintend the concerns of the company,” either have acted upon the supposition that where such second insur anee has been effected without the necessary assent, its policy became ipso facto void, or they have seen fit to reserve to themselves the power of waiving the forfeiture.
    This part of the charge was clearly wrong, therefore, and upon a point vitally important.
    (2.) It was equally erroneous in assuming that the consent to the second insurance could be given by parol.
    Under this head we maintain that whoever might give the assent, it must have been done in writing, to be binding on the company. By the, second insurance, the policy issued by this company was forfeited. This is admitted ; but it is contended it was not so wholly void but that it might be restored to life by a subsequent consent. In other words the forfeiture might be waived. For the sake of the argument, we are willing, here, to admit it. But then, how can this forfeiture be waived ?
    We need only to refer to the case above cited from 16 Ohio Rep., and the cases cited by counsel in argument. The court in that case says, in so many words, “ a waiver of forfeiture must be in writing.” This point is established by the decisions referred to by the plaintiff and by commercial usage. There is no decision to the contrary, and we do not feel at liberty to depart from a principle of universal recognition, in a matter of commercial law.” 164-5. And again, “ if the determination of the interest of the insured was a forfeiture merely of the policy, that could only be waived by a written instrument to that effect.” 165. '
    During the argument in the common pleas, some authorities were cited, with a view to prove that the consent, or waiver, or whatever -it may be called, might be given by parol. We remember only one, nor can we find any other, which we should suppose would be cited. This was McEwen v. The Montgomery County Mutual Insurance Company, 5 Hill’s Rep. 101. In that case the policy provided “ that in case the assured shall have already made another insurance against loss by fire, on the property therein insured, not notified to that corporation, the policy should cease and be of no other effect.” The agent who filled up the application, was informed of a prior insurance in the Saratoga Mutual, but the fact was not inserted in the application, nor was any other notice given to the company, or to any of its officers.
    It was claimed by the defendant that the policy was void, because no notice of the prior insurance had been given to the company in writing. But the court held otherwise, for the reason, first, that it was nowhere provided that it should be in writing, or inserted in the application; and second, because “ the company must have intended that notice of a prior insurance should be given to the agent.” It held that “ the agent was commissioned to negotiate contracts for them, and notice to him while engaged in that business, and acting within the scope of his authority, was notice to his principals.”
    All which may .be very good law, but does not- touch the question, as to the power of an agent to give the consent of the company to a subsequent insurance, made after the insurance has been effected. And I apprehend any case which may be cited as to this point, will be equally irrelevant and inconclusive.
    But there is one remark of the judge, made in deciding that case, which fully sustains the view we have taken of this, as to the effect of the second insurance without having previously obtained the consent of this company. He says “ if notice of the prior insurance was not given, the policy was void from the beginning.” Just what we contended for — that by the second insurance, without consent, this policy became absolutely void.
    
    The acts of a board of directors — who alone, as we have seen, can give a consent under such circumstances as these, or waive the forfeiture — can usually be' evidenced only in writing. The board, as such, is a corporate body, and where the power has not been delegated to another officer, or to one of its own number, it acts as a unit, and its acts are matter of record in some shape.
    The principle we are contending for is reasonable. It is all important to the intelligent management and successful operation of an association like this, that those managing its affairs should know, by reference to their papers, records, etc., just what their rights, duties, responsibilities and liabilities are Hence, the directors of this company have required that their secretary shall keep a faithful record of all their acts, and that whatever he does shall be done in writing. The agents have no power, except to report to the company, on the strength of which the company acts. The mode in which it acts, or rather in which its acts are evidenced, are as just stated. And every member of the company is interested in having the affairs of the company managed in this way. There are no reasons in law why they should not be, but many why they should be.
    5. The court erred in informing the jury that a director or the secretary of the company might give an agent authority to bind the company, by his consent to the insurance in the Lexington company, and that this authority might be given by parol.
    (1.) “ A director,” as we have seen, has, of himself, no power; though the board, if is admitted, may delegate such power to an agent, provided it is lawfully done. The record shows that no such delegation of power has been attempted in any way. Or, what is the same thing, there is no evidence it has been done or attempted, and the proof shows that all which has been done or attempted was before the court below, and is now part of the record.
    (2.) The same proof shows that the secretary has no authority to confer any such power upon an agent. The power of the secretary in this respect is specifically defined. He may, in connection with the president, “ give leave to effect additional insurances.” This is the extent of his power.
    Hence, as before stated, this power — and especially in cases where the second insurance has already been effected —remains with the board of directors. Certainly we need not refer to authorities to prove that where an act of incorporation gives to a body all the power it has, it must act in accordance with the provisions of the charter giving the power. If it be necessary, we would refer to the decision of Marshall, C. J., in Head & Amory v. Providence Insurance Company, cited on page 160 of 16 Ohio Rep.
    The law is the same as to the by-laws of a corporation, and the powers conferred by them. If made in pursuance of the charter, they are of the same force as it, and when they prescribe certain rules of action, those rules are as obliga ‘tory as the charter. When they prescribe to its officers a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.
    (3.) If such authority could not be given by either a director -or secretary, it is unnecessary to consider the other part of the proposition embraced in this charge. But if either of these officers could give to an agent the right to consent, for the reasons above stated, it must have been done in writing, to be binding upon the company.
    6. We maintain that fraud in obtaining the second insurance, would be a defense in an action upon this policy. The court will observe that this company refuses to insure more than two-thirds in value of the property, and in the by-law giving the president and secretary power to assent to an additional insurance, it is provided that the second' insurance shall not be in so large a sum, as, with the insurance in this company, to exceed two-thirds in value of the property insured. The object of this provision is obvious. And the question presented under this assignment is, whether the assured shall in this way be permitted to violate and nullify this salutary provision. To argue the -question is unnecessary. If the objection to the charge, when thus stated, is not apparent, no elaboration of argument would probably make it so
    
      7. Were the court below right in regard to all the points here made, involved in its charge to the jury, we claim that it erred in refusing to grant a new trial.
    (1.) As to the preliminary proof. Was notice of the loss waived ? It was not in terms, certainly. This is not pretended. Is there any proof that it was in fact ? Where it has been held that the preliminary proof may be waived, we are aware that it has also been held that whether it was or not, was a question for the jury. Bub there must certainly be some proof. What is the proof here ? All the defendant can claim is, that in conversation with the secretary, not long after the fire, when the defendant’s clerk asked him what was to be done about it, and about the goods saved, he said he would attend to it as soon as he could, and in the same conversation, when talking about the insurance in the Lexington company, he said this company would not stand upon technicalities, if they found all things right.
    Neither party considered this a waiver; for some ten days afterwards, the defendant actually made out and delivered to the agent a formal notice of loss. Clearly, then, there was nothing in the interview between Goodman and the witness, which induced the defendant to suppose the preliminary proof was waived. We want no stronger evidence than this on this point.
    We are aware that numerous authorities may be found, in which this notice has been considered as waived. We shall not consider them separately, nor in detail. But it will be found on examining them, that they are all cases in which the parties have met or corresponded, and the defendants have placed their defense on some other and specific ground; have stated that they did not consider themselves answerable for the loss, or doné or said something showing that they did not require preliminary proof to be made, and thus putting the assured off their guard, and inducing them to neglect giving the notice. Here there has been nothing of the kind. A notice was attempted to be given by hand ing it to an agent. At no time after that, was there any communication between the defendant and any officer of the company, by which the notice of loss could be waived. Hence there is no evidence of waiver. .There is no evidence of an opportunity to waive the notice. If the notice can be waived, and if after it had been left with Hadley, the secretary had had an interview with Hurd, and informed him, the company would not pay the loss, because it believed he destroyed the goods himself, or because the second insurance was obtained without its assent, or because of some other specific objection, there would have been evidence on which the jury might have found the notice waived. But no such evidence is found in the case, nor any evidence tending to prove a waiver.
    “ Where a policy of insurance requires notice of loss by fire to be given forthwith, and the underwriters, on payment of loss being demanded, reply that the proof of the amount of the loss is unsatisfactory; that there has been a material concealment, and that all the rights of the insured are forfeited under a particular article of the policy, and add that they reserve all objections to a recovery in any form, and without intending to waive any of their rights under the policy, this answer cannot be construed as a waiver of the objection, that notice of the loss was not given forthwith.” Edwards v. Baltimore Insurance Company, 3 Gill’s Rep. 176.
    We trust our various objections to the rulings of the court below will not be weakened, or lightly considered, because of their number. We have but one more. And perhaps we had more safely rested our case on that alone. Sure we are, this is an insuperable one — and justice requires us to state, that the president judge and one of the associates, were in favor of granting a new trial, for the reasons urged below, and here presented in support of the second proposition embraced in the objection we are now considering.
    A new trial should have been granted, because there was no evidence of the consent of the company to the insurance in the Lexington company, and the court of common pleas erred in refusing to grant it. And in presenting this argument we concede — but only for the sake of the argument — that the court below was right in charging that an agent, who' was legally authorized, might give this consent, so as to bind the company by parol. If the court was wrong in its charge, the judgment will be arrested for that cause. That point, however, is discussed under another head, and is by no means abandoned.
    But there was no evidence to justify the verdict, even under the charge of the court.
    Admitting that Hadley could have 'been authorized to give the consent of the company, there must have been some proof of it. We ask, with confidence, where is that proof ? We have actually proved what we are not bound to do, a negative. Hadley says he had no such authority. Goodman says he had not. The records of the company say he had not. The nature of the agency says the same. And the conduct of Hurd shows that he knew he had not. We rely, therefore, not alone upon the absence of proof — proof which the plaintiff below was bound to make — but in addition to this, we claim that the negative proof is conclusive of the case.
    It will not be. contended, we imagine, that the statement of Hurd that Hadley said he had seen the directors, and it was all right, will be evidence of his authority. An agent may prove his own authority in court, but what he says on that subject, out of court, is not evidence. The fact of the agency must be proved by competent testimony, and then the extent of the agency — which latter may be done by positive proof, or by inference from positive proof, as from the nature of the agency, recognition of his acts by his principal, etc., — and then what the agent says or does, as a part of the res gesta, may be proved by another. But to claim that because a person says he is an agent of another, that he has derived certain powers from another, or that another has intimated certain facts to him, the pretended principal is bound, is absurd. Pie idea that this proves an agency. or the nature and extent of the powers delegated to an agent, is ridiculous. We will not insult the intelligence of the court 'by referring to authorities. We presume counsel for defendant will not stultify themselves by maintaining any such position.
    And yet this is all there is to stand upon. Hadley “ said he had 'seen the directors, and it was all right.” This is all that is claimed by the all-important witness, Hurd, as proving the consent of the company.
    
      There is then no evidence of consent. We claimed a new trial, therefore, not because the weight of testimony was with us, but because no testimony was offered by the plaintiff — no legal testimony — to prove a point, without proof of which he himself concedes he could not recover. It was as essential to establish this fact, as to prove the issuing of the policy, and there is as total a lack of proof as though in reference to that fact, the plaintiff had merely proved that Hadley had, on some occasion, said the directors had told him a policy had been issued, and “ it was all right.”
    Need we press this point further ? It seems to us the principle of law is clear — that it is a case where -Ae plaintiff failed to make out an essential part of his case, or to give testimony tending to make it out.
    We will only add, that if the court overrules us on this point, rules and regulations are of no avail, and the compa^ ny may as well cease to adopt any. Nay, the charter may as well be disregarded, as a rule of action, at once. It will be deciding in effect, that the directors shall not “ superintend the concerns of the company;” that its charter, rules and bylaws, though published and known to all its members, possess no binding force, and may be superseded or destroyed by the casual conversation of a member of the company with one of its agents, who has no authority in the premises, professes to have none, says to the member he has none, is proved to have had none, where there is no attempt to prove that he has, and where all the conduct of the member shows that he knows he has not. If such a defense is not successful, the company never should attempt one, no matter what claim may be preferred against it.
    And we see no hardship in it. As a member of the compa-' ny, Hurd is supposed to know — in this case did actually know —what its rules are — rules established for his protection as well as that of the other members of the company. And his actions show that he did know what they were. He effects a second insurance. This he had a right to do, risking the consequences. But it was a matter of his own. It was intended for his benefit, not the benefit of the company. Having placed himself in peril — or as we -claim, having forfeited his policy— he applies to the company for relief. It was under no obligation to do anything; but to accommodate him, through its officers it did, according to its rules, take steps to investigate the matter, and if found expedient, waive the forfeiture by giving its consent to the second insurance. Its action was, however, delayed, by difficulties he himself created, by the abs'ence of the policy, etc., but finally, the agent was directed to investigate the matter, and if found right, to give the consent of the company. Whether this action of the company was legal is unimportant, as the goods were burnt before the message reached the agent. He took no steps under it.
    But the position occupied by the defendant was a voluntary one, in which the company had no agency. In the event of-a fire, the day after he effected his insurance in the Lexington company, he knew this company would be discharged. And he also knew — he must have known — he would continue in this state of peril till the consent of this company could be obtained, in accordance with its charter, rules, and by-laws. Why should he complain of us, if he was overtaken by disaster, before that consent was obtained ?
    He is just as well off as though he had not insured in the Lexington company, for there he has secured the same sum we otherwise would have been compelled to pay. And we are satisfied from the proof, he has got all his goods were worth. We are further satisfied, his object in doubling his insurance was to make the two companies pay for them.
    
    
      We are aware these considerations may not influence the court, in deciding the legal questions involved in the case, but we always feel more confident in our positions, more satisfaction in urging them upon the favorable consideration of a court, when we know a faithful application of the abstract principles of law will do exact justice — when law and equity harmonize and embrace each other.
    
      Humphrey, Upson and Edgerton, for defendant.
    I. The notice of loss required by the policy, to be given by the plaintiff in error, may be waived by the authorized agent of the company; and whether it has been so waived, was a question of fact to be decided by the jury.
    The court below instructed the jury that the plaintiff was bound to prove, affirmatively, the agent’s authority to receive or waive notice; and we presume it will not be seriously contended that the company could not authorize an agent to do this act as well as any other. The only question is, whether the company itself has power to waive such notice; and this question has been decided in the affirmative by a large number of decisions.
    The case of McMasters et al. v. The Westchester Mutual Insurance Company, is much like the present.
    In deciding that case the court say: “ The law is well settled, that if there be a formal defect in the preliminary proofs which could have been supplied had an objection been made by the underwriters to payment on that ground; if they do not call for a document, for instance, or make objection on account of its absence or imperfection, but put their refusal to pay upon other grounds, the presentation of such' further preliminary proof will be considered waived.”
    The court also lays great stress upon the fact, that “ the agents were neighbors of the assured — in daily communication with him on the subject of his claim; some of them obviously seeking for the means of defeating it by inquiries into the situation and title of the property destroyed, and by interrogation of the parties, and yet no distinct objection taken to the preliminary proofs that might now be considered as fatal.”
    In this ease, the proof shows that Hadley, the agent resided in the same town with the defendant in error; that immediately after the fire, Goodman, the secretary of the company, visited Akron for the purpose of examining into the circumstances of the loss; and while there he examined Frederick N. Hurd, defendant’s clerk, (as well as many other persons) on oath, for the manifest purpose of showing that the defendant had destroyed his own property, and also that he had misrepresented its value.
    In none of the conversations which he had with F. N. Hurd, did the secretary make any objection to payment of the claim on account of the absence of the preliminary proof, but he even assured him that the company would not stand on technicalities.
    In the case of The Ocean Insurance Company v. Francis, 2 Wendell’s Rep. 65, the court held the preliminary proofs to be waived by “ the declarations of the authorized agent of the plaintiff in error.”
    We also refer the court to the following authorities, which fully sustain our position upon this point:
    
      Martin v. Fishing Insurance Company, 20 Pick. Rep. 389 ; Vos v. Robinson, 9 Johns. Rep. 192; Francis v. Ocean Insurance Company, 6 Cowen’s Rep. 404 ; Etna Fire Insurance Company v. Tyler, 16 Wendell’s Rep. 401; McIntyre v. Bowne, 1 Johnson’s Rep. 228.
    II. If the notice of loss was given to Hadley, the agent of ' the company, and he undertook to convey it to the company, it was sufficient.
    It appears from the testimony, that the defendant in error made out the notice, in writing, and took it (within the time required by the policy) to Hadley, the agent of the company in Akron, and in reply to his inquiries was informed by Hadley that it made no difference whether the notice was left with him or sent to Goodman, the secretary. Hadley also promised to send it to Goodman the same day.
    We maintain, 1, That notice to the agent was notice to the principal, and that leaving the notice with Hadley, was a sufficient compliance with the requisitions of the policy.
    In McEwen v. The Montgomery County Mutual Insurance Company, this position is fully sustained. In that case, the notice of a prior insurance, required by the policy, was held to be good when given to an agent, although it was not in. writing, and never actually reached the company. In deciding the case, the court say: “ The agent is appointed and sent out for the purpose of inviting men to insure, and encouraging them to do so by transacting the business in such a way as to save them from the necessity of either going or sending to the office of the company. * * * The power under which the agent acts never prescribes, in terms, that the notice may be given to him, but the notice is good for the reason that, while acting within the scope of his authority, whether a general or special agent, he stands in the place of the principal, and persons dealing with him are, for most purposes, regarded as dealing with the principal. * * As the notice was properly given to the agent, it is of no consequence that he neglected to communicate it to the company.”
    2. But if the court should not consider it sufficient in general to give such notices to an agent, the company would still be bound by the notice in this instance for another reason, which is, that if the notice did not' reach the secretary in time, the delay was occasioned by the fraudulent acts of the agent, ánd the company cannot take advantage of such fraud. 2 Greenleaf's Ev. p. 383, § 406.
    III. By the insurance in the Lexington company, the policy in the Stark company did not become absolutely void,, but only so far void that the Stark company might take advantage of it, if the company had not subsequently assented to it.
    
      One of the conditions annexed to the policy provides, that “ if insurance on the same property, insured by this policy or any part thereof, shall at the date thereof, or during its continuance, subsist in any other company, without the consent of this company, this policy shall be void.”
    This condition does not, in express terms, require that the consent of the company should be obtained previous to the second insurance; and we understand its true construction to be, that where a second insurance is thus effected, it is at the option of the company either to annul the contract, or to treat it as still in force. This is the construction given to similar provisions in other contracts, and we know of no reason why a different rule should be applied to policies of insurance. In this case, none of the officers of the company thought of treating the contract as at an end, until after the loss of the property insured, .and the directors showed their construction of the contract by actually authorizing the agent to give the assent of the company, as is proved by the testimony of the secretary.
    The case of Jackson v. Massachusetts Mutual lire Insurance Company, 23 Pick. Rep. 418, has been cited as sustaining the opposite doctrine. That case does not, however, decide this point, for the question did not arise, whether a subsequent consent to the second insurance was good. It was admitted that consent had not been given at any time, and the court, of course, held that the policy was not binding. The case of Cockrill v. Cincinnati Mutual Insurance Company, 16 Ohio Rep. 148, is also relied upon by the counsel for the plaintiff in error, but we think it does not sustain his position. In that case, the plaintiff’s boat, which had been insured by the defendant, was sold at judicial sale; but the defendant agreed that, if the plaintiff would repurchase the boat the policy should continue. The court held, that “ the policy was at an end by the transfer of the entire interest of the insured, by judicial sale;” and it seems to have been the opinion of the court, that “this was not a forfeiture which could be waived, but an entire destruction of the policy,” and that “ the agreement was equivalent to a new policy.” It is plainly admitted in the decision, that a new forfeiture may be waived, althought it is said that the waiver must be in writing, a proposition which we shall consider in another part of our argument.
    1. Consent to the second insurance might be given by an authorized agent, by parol. '
    As will be seen by the bill of exceptions, the court below instructed the jury that, if the defendant in error relied upon an assent given by an agent, he must prove that the agent was authorized to give such assent.
    In this, we think that the court went too far; for we claim that the general powers of the agent were sufficient, without any special authority, to act in this case. Such power is necessarily implied from the nature of his employment. He is appointed for the purpose of enabling men to transact business with the company, without the trouble and expense of going to its office ; and the object of his appointment would be defeated by holding his acts not to be binding on the company.
    We insist, however, that the evidence proves that Hadley was specially authorized to give the consent of the company to the Lexington insurance.
    2. The consent to a second insurance may be given by parol.
    The condition annexed to the policy simply requires the consent of the company, without prescribing the mode in which it shall be given. The company was notified of the second insurance immediately after it was obtained, and its consent thereto requested, and it was bound, in good faith, either to give or refuse its consent within a reasonable time, so that the defendant in error might obtain another insurance if necessary. We claim that, if the company, after being thus notified, expresses no dissatisfaction, but shows its intention to continue the insurance by calling upon the assured to pay assessments, etc., consent will be implied from its acts.
    
      However this may be, it seems to us clear, that an express assent is binding, although given by parol, as in this case.
    The contract into which the parties have entered, certain ly does not require that the consent should be in writing. We can see no reason why any distinction should be made between the forfeiture of a policy of insurance, and the forfeiture of a lease or other contract; and it is admitted that all such forfeitures may be waivéd. by mere acts, without any express waiver.
    Why, then, should a written waiver be required in this, even supposing that obtaining the second insurance did amount to a forfeiture ? We are told, in reply, that “ there is no decision to the contrary.” We insist that it rests upon the counsel for the plaintiff in error to produce decisions establishing the position for which he contends; he is bound to show why policies of insurance should be subject to a rule of construction different from that applied to all other contracts.
    We deny that the decisions sustain his position. It is said that the case of Cockrill v. Cincinnati Mutual Insurance Company, referred to above, decides this question; and it is true that the language of the decision might be made to include this case, but we do not believe that the court intended to establish any such general rule in regard to forfeitures, as is contended for.
    The court evidently considered the sale of the boat not as a forfeiture merely, but as an entire destruction of the policy, and that therefore a new policy was necessary. As was said by the. counsel for defendant, “ The termination o'f the risk originally assumed, was not a matter in the nature of a forfeiture. The contract was to- indemnify the party insured, against loss or damage that might happen to the interest which the insured had in the boat. When that interest ceased, the risk ceased, because no damage could possibly happen to that which had no existence.
    
      Here the interest of the defendant in error in the property insured, still remained liable to the perils insured against, and unless released from the contract by his own act, he still continued liable to pay assessments upon the premium note. We claim that if this decision is correct, it must be sustained by. reasons that do not apply to the present case.
    The authorities cited by counsel in the same case, are also referred to. They are, 3 John. Cases 142; 1 Phil. on Insurance 572; 1 Sum. Rep. 232. They decide that a forfeiture by deviation may be waived; but it is claimed by the counsel for the defendant, in the case in 16 Ohio Rep., that, according to these authorities, the waiver must be in writing. In the case referred to in Johnson’s Cases, the waiver was in writing, and was held to be binding upon the company, but the 'question did not arise, and the court did not intimate an opinion whether it would not have been equally good if it had been verbal. In the passage quoted from Philips oh Insurance, it is said that the waiver must be in writing; but no authority is given for the position, except the case of Crowningshield v. New York Insurance Company, which does sustain it.
    The case in Sumner’s Reports we have not had an opportunity of examining.
    The case of McEwen v. The Montgomery County Mutual Insurance Company, 5 Hill’s Rep. 101, is, it seems to us, exactly analogous to the present. In that case, the policy required notice of prior and subsequent insurances to. be given to the company, and the court held that, as the policy did not expressly require it to be in writing, the notice was sufficient, although it was given verbally to an agent, and never was communicated to the company.
    IV. It is claimed that the court erred in charging the jury that a director or the secretary of a company might give an agent authority to bind the company by an assent to the insurance in the Lexington company.
    
      We consider it proper to state, this part of the charge is not correctly set forth in the bill of exceptions. The court, in fact, charged that those officers of the company, who had power to give such consent for the company, might authorize an agent to act for them, and the defendant in error was bound to prove that the agent was actually thus authorized. The counsel for the defendant in error objected to the language of the bill of exceptions in this respect, and the objection was sustained, but the president judge accidentally omitted to correct the error.
    We do not, however, deem this an important point, for the defendant in error did not claim, on the trials that the agent acted under the authority derived from a single director, or from the secretary alone, but from the directors and secretary. This charge, therefore, even if given, would have been upon an abstract point, not involved in the case.
    Fraud, in obtaining an insurance in the Lexington company, would be no defense to this action.
    The court has no means of knowing whether the defendant committed such fraud, or not, for the plaintiff in error offered no evidence whatever for the purpose of proving it. It was not in issue in the case, and we know of no principle of law which would permit either party to give evidence in regard to it. How, then, could such fraud be a defense to this action, even if it were fully proved. The mere statement of the proposition is a sufficient answer to it.
    Y. It is claimed, in the last place, that the court erred in refusing to grant a new trial.
    It is a well settled rule of law, that the power to grant a new trial will not be exercised for the purpose of enabling the defendant to take advantage of technical defenses, especially when substantial justice has been done by the verdict of the jury. The points upon which the plaintiff in error contends that the testimony was insufficient, are strictly technical, and do not affect the merits of the case. We do not, however, admit that there was a want of proof in regard to any point, for we think an examination of the whole evidence will satisfy the court, that every point was fully proven.
    In regard to the waiver of notice, the proof was stronger than in any of the cases above cited. In addition to the express declaration of the secretary that the company would not stand on technicalities, the testimony shows that immediately after the fire, the officers of the company spent several days in taking depositions (and among others the defendant’s clerk) for the purpose of proving that the fire was caused by the defendant himself, and also that he had misrepresented the value of his goods, thus leading the defendant to suppose that no other defense, to his claim was intended. If the company intended to refuse payment of the loss on account of the absence of preliminary proofs, they were bound to state the objection at that time, and having failed to do so, cannot now take "advantage of it.
    The evidence of the assent of the company to the insurance in the Lexington company, seems to us conclusive. Hadley, the agent; actually assented to the second insurance in behalf of the company. That is proven by the testimony of E. N. Hurd and J. A. Granger. We maintain that this is binding upon the gompany, even without' proof that Hadley had re ceived a special authority. It is, however, admitted by the secretary, that after consultation with the directors, he wrote to Hadley to give the required consent. The secretary thinks the letter did not reach Akron until after the fire; but supposing that to be true, would not the action of the directors amount to a ratification of the previous acts of the agent ? We think it would.
    Whether Hadley did really receive the letter before the fire, or not, was a question of fact to be decided by the jury, and there were many circumstances which justified the jury in coming to the conclusion that the secretary was mistaken upon that point. The secretary, himself, was uncertain as to the exact time when he mailed the letter, and we have no doubt that Hadley told the truth when he said that he had heard from the directors, and it was all right.
   Avery, J.

It became a question before the jury, on the trial of the case below, whether the defendant, the Stark County company, had given its assent to the insurance effected in the Lexington company; and the court in charging upon that point, used this language, “ That authority to give such assent may be given to an agent by a director of the company, or by the secretary, and this authority may be given by parol.”

To secure from the owner vigilance and constant care over the property insured, it is the practice of these companies to cover by their policies a part only of the loss. They insure no property for its full value, or for an amount greater than the value, because it is found necessary to guard against negligence on the part of the insured, and sometimes against his dishonesty. It is necessary, also, for the same reason, to provide, that the insured shall not effect policies at his pleasure, upon the same property, in other insurance companies.

The subject is considered of so much importance, that for this company it is provided in the act of their incorporation, if insurance on any building insured by the company, shall subsist at the same time in any other office, the insurance by the company shall become void, unless such double insurance subsist with the consent of the directors or agents,' signified by indorsement on the back of the policy, signed by the president and secretary.

With the object of extending the provisions to all other property to be insured by the company, amongst the condi tions annexed to the policy, and -declared to be a part thereof, is one in the following words: “ If insurance on the same property insured by this policy, or any part thereof, shall at the date thereof, or during its continuance, subsist in any other company, without the consent of this company, this policy shall be void.”

The policy is void, then, without the consent of the company. The insured in such ease, if upon the trial, another policy is shown to exist, must prove that it was effected with the consent of the company. He takes the affirmative. The company only can give the consent, not a member, or even an officer, unless it be further shown that he was previously authorized by the company.

This company has pointed out the mode in which its consent is to be given. It has provided for this in one of its by-laws, which the plaintiff, being a member of the company, is supposed to know. The by-law is in these words : The president and secretary may, in behalf of the company, give leave to effect additional insurances in other companies, on buildings or other property insured by this company; not in any case, however, for a greater sum or amount than the difference between the sum insured by this company, and two-thirds of the estimated value of the buildings or other property so insured; and also to indorse such leave on the policy so insured by this company — the same to be recorded in a book provided for that and other purposes.” Here is the only mode, according to the charter and by-laws, authorized by the company, for giving its consent. The president and secretary must give the leave, and unless some other law be shown, there is no authority in a director or secretary to give such leave.

The charge of the court, then, by which the jury were instructed, that such assent might be given by a director or secretary, was erroneous.

Errors, it is alleged, are also to be found 'in other portions of the charge, and the court erred, it is claimed, in not granting a new trial, upon the motion of the defendant.

The error which has been particularly noticed above, must cause a reversal of‘the judgment; and as to the rest of the errors assigned, we are not agreed to declare either one of them sufficient for that purpose. Judgment reversed.  