Page:Federal Reporter, 1st Series, Volume 10.djvu/247

 WALLBE V. NORTHEEN ASSDRANCE 00. 233 �ing: Ins. Co. v. Lawrence, 10 Pet. 507; Marshall, Fire Ins. 789; Jenidns v. Ins. Co. 7 Gray, 370; May, Ins. §§ 272, 287, 289, 291; Rohrbach v. Ins. Co. 62 N. Y. 47. �But it is insisted that compliance with this provision of the policy was waived by the defendant compariy, beoause ite agent made no inquiry concerning the estent of plaintiff's interest, and plaintiflf made no statement upon the subject. The evidence does not support this position. The contract was that if the interest of the assured was any other than the entire, unconditional, and sole ownership, then he was to represent the facts to the company, — not that he was to dis- close them truthfully if requested, or that he would make trne and full answers to questions upou the subject. The duty of disclosing his interest, the same being less than the entire ownership, was plainly devolved upon the plaintiff, and for good reason, since he knew and the agent of the conjpany did not know the facts. In other words, under the contract the defendant was authorized to assume that the property was owned absolutely by the applicant for insurance, unless the contrary was represented by him, and more especially in a case where the applicant held what appeared to be an absolute title. A waiver of this condition of this policy cannot, therefore, be pre- sumed from the mere fact that the agent of the defendant made no inquiry upon this subject. �The case might have been different if the plaintiff had been called uponto sign an application, and to answer written or printed ques- tions touching his interest, and had failed to do so. In such a case the issuing of the policy, not with standing a failure to answer some of the questions, might well be held a waiver of such answers. Hall V. Ins. Co. 6 Gray, 186; Liberty Hall Ass'n v. Ins. Co. 7 Gray, 265. And it may also be true that where the policy requires an applica- tion, aiid provides that it shall contain a f ull and true exposition of all the facts in regard to the condition, situation, value, and risk of the property insured, a company insuring without such application may be held to waive the representations required to be embraced therein. Corn. v. Ins. Co. 112 Mass. 136. �These authorities are not in point, for the reason that in the pres- ent case no written application was provided for in the policy, and, as already stated, the duty of divulging the fact that he was not the full owner of the property was devolved upon the plaintiff. Besides, it would be an unwarranted extension of the doctrine of estoppel to hold that a party may waive that, the existence of which he does not know, and is not in duty bound to ascertain. ��� �