'aiver or Estoppel.--Growing out of the doc trine of representation and warranties is the important doctrine of waiver, or estoppel as it is somewhat incorrectly called. As the effect' of misrepresentation or breach of warranty is to give the insurer the right to avoid the policy. the right itself may he waived either expressly or by the contract of the insurer. Thus the receipt and acceptance of a premium by the insurer with knowledge by him of a breach of warranty waives the breach, and renders the contract valid.
Upon similar grounds. if the insured gives im perfect or ambiguous answers to the questions asked by the insurer at the time of effecting the policy, the insurer is declared to have waived fuller or more specified answers and cannot avail himself of a defective answer as a ground for avoiding the contract. The question of waiver. or estoppel, has frequently arisen in cases where the written application for the insurance policy, which is made a part of the policy, is tilled in by the agent of the insured, altIwught signed by the applicant. It the agent does not correctly tran scrib• the answers of the applicant for insur ance, it is open to the insurer, in et cut of loss, to rely upon the untruth of the written answers as a breach of warranty a%eiding the pulley. In many States the courts have held that the insur ance agent, although in fact Doing an act ex pected of and attributed to the insured, remains the agent of the insurer, and that the insurer, through his agent having notice by the answers of the insured of the matter relied upon by the insurer as a breach of warranty, and having after such constructive notice issued the policy with full knowledge of the alleged breach of the writ ten terms, is estoppel from relying on the breach as a defense to his liability on the contract of insurance. While t he 'loci rine undoubtedly works out substantial justice, it has been subject to severe criticism on the ground that it is not a true estoppel (see EsTopen.), and that it violates the parole evidence rule (see i DEN CE in permitting the insured to emit radiet the writ ten answer contained in his application.
Life insurance policies are freely assignable, and if issued in good faith to one having an in surable Interest, the assignee need not have an insurable interest in the life insured. Policies
I if marine insurance are also freely assignable; but as the marine policy is purely one of indem nity. if ie necessary that the assignee should ac quire the interest insured in order to reeover on the policy. Fire insurance polieies, owing to the importance of the personality of the insured, ean only be assigned with the consent of the insurer.
The policy contains precise statements as to the conditions under which the insurance will be forfeited. the conditions under which the in de lllll ity becomes payable. and the proeednre by the insnred is to prove loss and obtain the indemnity. Sound policy would seem to require that all these emnlitions should he of such a nature that they would put no unnecessary ob stacles in the way of honest insuranee. and set forth so clearly that the insured eould have no excuse for misunderstanding the exact nature of the contract. he has entered into. The better class of insurance companies have undoubtedly aimed to give the insured fair treatment. In too many cases. however. companies have shown a disposition to take advantage of obscurities or teefiniealities in the contract to avoid paying henest losses. So prevalent has this practice been that the legislatures of many of our States have considered it necessary to come to the pro tection of the poliey-holders. For example. the practice of printing senae essential feature of the policy in very small type so that it easily escaped the notice of the insured has been met by legislation prescribing the smallest size of type that may be used: the requirement of for malities in proving claims whieh in many the insured are linable to fulfill has been de. dared illegal and not binding.
In interpreting all the claims of the insurance policy, it is a general ride that. inasmuch as the insurer in fact proposes (lie policy and fixes the terms. the terms of the policy will he construed most strongly against the insurer. Thus, a pol icy which stipulates that the building insured is 'detached fifty feet,' in the absence of express language to the rontrary will be deemed to mean detached titty feet trout any building affecting the risk, and not from any Imilding irrespective of the character.