Page:Federal Reporter, 1st Series, Volume 4.djvu/770

 75B FEDERAL BBPORTBB. �ity, as ïbe agent of the company, to make such waîver, not- ■withstanding the eleventh clause. The reîeree bas found as a fact that, at the time the policy was delivered to the plaintiff by the defendant'a agent, the fact that the plaintiff had other insuranee on the merchandise to the extent of $6,000 waa known to the agent of the defendant. He has found, as a conclusion of law, that the delivery of the policy "by the de- fendant to the plaintiff, with the knowledge of $6,000 of exiat- ing insuranee upon said stock of merchandise, was a waiver of the implied prohibition contained in the condition in said policy, permitting $3,000 additional insuranee." The de- fendant excepted to the finding of fact "that, at the time of the delivery of its policy, the fact that there was $6,000 other insuranee on the property insured was known to its agent;" and to the conclusion of law "that the delivery of its policy was a waiver of the prohibition contained in the condition in eaid policy permitting |8,000 additional insuirànce." �The defendant contends that the finding that the agent knew of $6,000 other insuranee was not warrànted by the evidence. The plaintiff 's agent, A. S. Putnam, who applied for the insuranee, says that at the time he did so he told the defendant'a agent,Garr, that the plaintiff already had $6,000 insuranee, and wanted f 2,000 more, Two polieies, of $3,000 each, were then issued by Carr & Son to the plaintiff on these goods ; one by the defendant and the other by a Pennsylvania Company, each dated October 16, 1877. A month or less after that the two polieies of $1,000 each were given up by the plaintiff to Carr & Son, and the policy in suit was issued in their place, bearing the same date and running for the same time from October 16, 1877. The $1,000 policy issued by the defendant, and so given up, contained the words, "$3,000 other concurrent insuranee permitted." It also con- tained the same clauses as to the policy becoming void, and as to agency and as to countersigning, as the $2,000 policy afterwards did, and it was countersigned "J, Carr & Son, agents, October 16, 1877, at Utica." Carr testifies that when the original application was made, which resulted in the two $1,000 poliuiea "nothing particular was said," except that A. ����