Boggs was a general agent of the company. If he had waived the condition of prepayment, the insurers would have been bound by his act, though it was in violation of their private instructions. The law would have implied such waiver if the policy had been delivered by the agent without requiring payment of the premium, and had been accepted by the plaintiff as a complete and executed contract. The company would have been held to its engagement, and the assured would have been liable for the premium, notwithstanding the acknowledgment of payment on the face of the paper.
But there was no such waiver, either by the agent or the company; and the policy never became operative as a binding and mutual contract. It is true that it was complete in form, and that it was found in the plaintiff's possession; but *Page 621 the presumption in his favor, which would naturally arise from these facts, was repelled by undisputed proof that it was not accepted by him as a concluded agreement, nor delivered as such by Boggs. The appellant made no application for insurance, either to the agent or the company. Boggs had before contracted with him in behalf of other underwriters. His agency for them having terminated, and the old policies having expired, he desired to have the plaintiff insure his property with the defendant. He accordingly filled out the policy in question with another of a similar character, and, in the absence of Mr. Wood, left them with a clerk in his store, on the condition that when the plaintiff came to town, the premium should be paid if he accepted them, or the policies returned if he declined them. When Wood came, he did neither. The agent sent his clerk three times with instructions to call for the premium or the policies. The first time Wood was not in. The next time he deferred an answer, telling the messenger to call again. On the last occasion, which was the day before the fire, he at first directed his clerk to draw a check for the amount of the premium, but subsequently countermanded the order, and said he would call and see Boggs in reference to a loss he had sustained on other property, as to which he made some complaint. He was sworn on the trial as a witness in his own behalf. He proved no acceptance of the policy by himself, and no waiver of the condition by the agent; but he testified, in substance, that he intended to see the agent the day previous to the fire, and should have done so if he had not forgotten it.
It is probable from all the circumstances that his purpose was, in the end, to accept the policy and pay the premium, if the other matter was arranged by Boggs to his satisfaction; but it was at his own peril that he held the question open for advisement. The papers left at his store operated as mere proposals to insure. So long as they were unaccepted, they had no subsisting force. The company, as yet, had no right of action for the premium, and he had no claim to indemnity in case of loss. The acknowledgment of payment in the policy, like the instrument itself, was provisional, and designed *Page 622 to take effect when he signified his acceptance by sending the premium. Such an acknowledgment does not operate as an estoppel, but merely as evidence of payment; and in this case it is abundantly proved that no such payment was made.
The company waived nothing, even if the instrument be regarded as operative; for it contained a stipulation that until the payment of the premium, the insurers should not be bound by their undertaking. There was no waiver by the agent of this proviso. On leaving the policy with the plaintiff's clerk, he made it an express condition that the premium should be paid or the policy returned; and all that he afterwards did, was to insist on the performance of this condition.
It is claimed that the right of the plaintiff to recover is sustained by the judgment of this court, in the case of Sheldon v. The Atlantic Insurance Co. (26 N.Y., 460). We do not so understand the effect of that decision, and it evidently was not so understood by Judge EMOTT, who in that case delivered the opinion, and, in this, concurred in pronouncing the judgment. The policy there, was applied for by one Godfrey, at the office of Lewis, the general agent of the company at Rome. He left the application with Snow, an agent in the same office who acted in the place of Lewis in his absence. Godfrey offered prepayment of the premium, but Snow declined to receive it, stating that they would send for it, or he might bring it in at some future time. Four days afterward, Lewis, the general agent, inclosed this with another policy in a letter to Godfrey, notifying him that the company had increased their rates of insurance, and concluding as follows: "Should you decline the policies, please return them by return mail; if you retain them, please send me the amount, $29.50." There was no intimation in the letter, that the waiver of prepayment by Snow was revoked; and the court construed the requirement of an answer by return mail, as applicable only to the case of his refusing to accept the insurance for which he had formally applied. The subsequent action of Lewis favored this construction. In a letter written to Godfrey some three months afterwards, and subsequent to the burning of the property, he *Page 623 threatened to cancel the policy unless the premium was paid; thus recognizing it as then in force, though subject to future rescission. It would neither be safe nor just to extend the doctrine of that case to one like this, where the claim of waiver rests on mere implication from the appropriation of the policy by the plaintiff in disregard of the condition, and this without the consent of the company, or of any one acting in its behalf.
The plaintiff, on the trial, offered to prove in various forms, that Boggs was in the habit of violating the instructions of his principals, and waiving the performance of conditions prescribed in their policies. This evidence was properly excluded. No offer was made to show that the company was aware of the practices imputed to the agent; and even if the custom had extended to them, it would be unavailing to control the express terms of the contract. (Hinton v. Locke, 5 Hill, 437; Vail v. Rice, 1 Selden, 155.) An omission or waiver in other cases could not be material in this, where the condition is embodied in the policy, and the evidence of waiver is wanting.
It is claimed that the judge erred in directing the exceptions to be heard in the first instance at the General Term, and permitting the entry of judgment to be suspended in the meantime. It is a sufficient answer, that there was no exception to the direction, and the error, if any, was in favor of the appellant. But there was no mistrial, and no irregularity even in practice. The order was properly granted under the 265th section of the Code.
The judgment should be affirmed with costs.
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