Page:Federal Reporter, 1st Series, Volume 4.djvu/776

 7G2 FEBSBAIi BEPOBTBB. �powers of the agent were sucla as that the transaction with him was the same as if done wiih the defendant ; it is bound as fuUy as if it were so. There was thus a perfect waiver of those conditions of the policy, and it remained a valid con- tract for another term, When the loss insured against hap- pened, the defendant became liable to pay, and has shown no real defence against the action." �The case of Whited was decided with the concurrence of ail the judges of the court of appeals. The present case cannot be distinguished from it. The fact that in the Whited Case Harmon said that he "would mak^ it ail right" does not make thia case any weaker than that one. The delivery of the pol- icy by Carr to the plaintiff as a valid contract of insuranoe was an act of Carr, as the agent of the defendant, asserting such validity, and asserting, in effect, that the policy was. issued in view of the statement of A. S. Putnam that there was $6,000 other insurance, and that any statement of a dif- ferent amount of other insurance, in the policy, was a mis- take, and not in accordance with the fact, as known to both parties, and that any provision in that policy making it void because the $6,000 was not written on it was then and there waived. Carr had authority to issue policies without writing to the defendant, and must be held to have been the agent of the defendant in receiving the information as to the $6,000 other insurance, and in making the waiver which on the facts was made. �No distinction can be drawn between this case and a case where, under like ciroumstances, a party might have stated to the agent correctly the amount of other insurance, and yet nothing was said in the policy as to how much other insur- rance was permitted. In the Whited Case there was, it is true, an entire absence from the policy of any statement of the change of interest, while here there is a statement per- mitting $3,000 other insurance. But the absence of the statement of the true other insurance is no different from the absence of the statement of the true interest of the insured, although some sum be named in the policy for other insur- ance. Nor does it make a distinction that the other insur- ����