was a waiver of actual payment as a condition precedent to the liability of the company. The only remedy of the company thereafter was to rescind or to cancel the policy for non-payment of the premium within the sixty days, upon personal notice to the plaintiffs, which the bill of exceptions shows was not received by either of the plaintiffs. When credit is given by an insurance company, it has no right to cancel the policy for non-payment of premium, except after putting the insured in default (Latiox v. Germania Ins. Co., 27 La. Ann. 113), and personal notice of intended cancellation must be given to the insured. (Insurance Co. v. Turnbull, 86 Ky. 230.)

If the notice is sent by mail, and not received, as in this case, the cancellation for non-payment of premium is ineffective. (Mullen v. Dorchester Mutual F. Ins. Co., 121 Mass. 171.) Notice of cancellation to the agent who negotiated the policy will not bind the assured (Grace v. American Central Ins Co., 109 U. S. 278; Mutual Assurance Society v. Scottish U. & N. Ins. Co., 84 Va. 116; London & L. F. Ins. Co. v. Turnbull, 86 Ky. 230); nor to any other person than the one obligated to pay the premium. (Chadbourne v. German-American Ins. Co., 31 Fed. Rep. 533.)

Again, the local agent at Stockton, being clothed with general power to receive proposals for insurance, and to countersign and deliver policies in San Joaquin County, is presumed to have the power of the company within that county to waive the immediate payment of premiums, and to make contracts for credit. (Ball and Sage Wagon Co. v. Aurora F. & M. Ins. Co., 20 Fed. Rep. 232; Post v. Etna Ins. Co., 43 Barb. 351.)

Whether an agent has general or only particular powers is not determined by simply calling him a local agent. (Murphy v. Southern L. Ins. Co., 3 Baxt. 448; 27 Am. Rep. 761.) An agent who under general instruction from the home office has authority within a certain territory to deliver policies and receive premiums

ment.

is a general agent, and has authority to waive cash pay(Southern Life Ins. Co. v. Booker, 9 Heisk. 606; 24 Am. Dec. 344.) A local insurance agent is presumed to have power co-extensive with the business intrusted to his care, and his powers will not be narrowed by limitations not communicated to the person with whom he deals. (Baubie v. Etna Ins. Co., 2 Dill. 156.) Where by the terms of a policy a particular local agent is to countersign it to make it valid, so that the insured must deal with him, and no one else, he represents the power of the company, so that any policy which he countersigns binds the company to any person insured through his agency who has no notice of limitation of his power, though he may have exceeded his authority and violated his duty to his principal. (Westchester F. Ins. Co. v. Earle, 33 Mich. 151-153; Viele v. Germania Ins. Co., 26 Iowa, 58; 96 Am. Dec. 83; Murphy v. Southern L. Ins. Co., 3 Baxt. 440; 27 Am. Rep. 761; Whited v. Germania Ins. Co., 76 N. Y. 415; 32 Am. Rep. 330.)

A local agent having ostensible general authority to solicit applications and make contracts for insurance, and to receive first premiums, binds his principal by any acts or contracts within the general scope of his apparent authority, notwithstanding an actual excess of authority. (Insurance Co. v. Wilkinson, 13 Wall. 234; Miss. Valley L. Ins. Co. v. Neyland, 9 Bush. 436; Rivera v. Queen's Ins. Co., 62 Miss. 721; Insurance Co. v. McLanathan, 11 Kan. 533; Continental Ins. Co. v. Kasey, 25 Gratt. 271; 18 Am. Rep. 681; Wheeton v. Insurance Co., 76 Cal. 415; Nat. Mut. F. Ins. Co. v. Barnes, 21 Pac. Rep. 165; Western Ins. Co. v. Hogue, 21 Pac. Rep. 641.) By the authorities above cited, it appears that the plaintiffs were entitled to the whole term of the credit for which they contracted through the defendant's local agent, and could not thereafter be put in default for a failure to pay or tender the premium before the expiration of the period of credit actually given. That credit,

LXXXIII. CAL.-17

from May 2 until October 1, 1887, was actually given must be assumed as a fact for the purposes of the motion for a nonsuit, it appearing from the bill of exceptions that evidence to that effect was given on behalf of the plaintiffs without any counter-evidence whatever, unless the contents of the letter addressed to the plaintiffs by the defendant's agent at Stockton may be so construed. That letter only purports to notify them that "instructions from the home office are imperative to collect in sixty days," and that the premium "falls due on the 1st of July," two months after the policy was delivered, -thus clearly indicating that a credit of sixty days had been given with the sanction of the company; but as the letter was not received by the plaintiffs, it can have no effect as evidence against them for any purpose. It also appears by the terms of the written appointment of the local agent that he was made responsible to the company for the collection of all premiums on policies issued by him, and that it was the custom of the company to allow its agents to give a credit of sixty days on premiums. From these facts it may fairly be inferred that the company was content to substitute the personal liability of the agent for the condition of prepayment of the premium. (Elkins & Co. v. Susquehanna F. Ins. Co., 113 Pa. St. 386-394; Lebanon Mut. Ins. Co. v. Howes, 113 Pa. St. 591; Susquehanna F. Ins. Co. v. Elkins, 124 Pa. St. 484.)

It is urged by respondent's counsel that actual payment of the premium is a condition precedent to a recovery upon the policy, notwithstanding an agreement for credit, and that it was so decided in Bergson v. Builders' Ins. Co., 38 Cal. 546. But it appeared in that case that issue was taken on the fact of payment, and that there never was any actual payment or tender of the whole premium, and that the policy was canceled for non-payment of a part of the premium within the period. of the credit given by the company, and after due no

tice. The case also holds that an acknowledgment of the receipt of the premium in a delivered policy may be contradicted so as to defeat a recovery upon the policy; but this rule has been changed by section 2598 of the Civil Code. The decision in that case is no authority against the position that a tender of payment of the premium in full, within the term of the credit allowed, is a sufficient compliance with the condition of payment to sustain an action on the policy. The company cannot refuse such a tender, and then successfully insist upon a nonsuit because the premium was not actually paid. (Eagan v. Etna F. & M. Ins. Co., 10 W. Va. 588; Boehen v. Williamsburg City Ins. Co., 35 N. Y. 132 90 Am. Rep. 787; Bodine v. Exchange F. Ins. Co., 51 N. Y. 119: 10 Am. Rep. 566; Civ. Code, sec. 1485.)

2. The next important question relates to the effect of the provision in the policy that "the use of general terms, or anything less than a distinct specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction herein." So far as such a provision has been held to constitute a limitation upon the power of agents, it has been applied to cases of waiver of conditions made after the signing and delivery of the policy as a consummated contract, such as the waiver of conditions relating to assignment of the policy, to increase of risk, or to occupancy of the insured premises. (Shuggart v. Lycoming F. Ins. Co., 55 Cal. 408; Gladding v. C. F. M. I. A., 66 Cal. 6; Enos v. Sun Ins. Co., 67 Cal. 621; Walsh v. Hartford F. Ins. Co., 73 N. Y. 5.) In the last case cited, it is expressly held that the conclusion that such a provision limits the power of agents after the policy has been delivered, and the restriction upon their power to waive conditions as to the use or vacancy of the premises, known to the insured, "does not interefere with that class of cases which have established that conditions for prepayment of premium and

the like which enter into the validity of the contract of insurance at its inception may be waived by agents, and are waived if so intended."

It has been expressly adjudged by the supreme court of Iowa, in a well-considered case, that the insured is not bound to take notice of conditions in the policy that the premium must be actually paid, nor of the provision that the waiver of condition must be indorsed in writing on the policy when the policy is executed and delivered to him as a valid and completed contract by an agent having authority to countersign it, and who, before or at the time of the delivery of it, has given the insured a credit upon the premium by parol; and that if a loss occurs in such case before the credit expires, the company is bound, notwithstanding that the agreement for credit was not indorsed upon the policy. (Young v. Hartford Fire Ins. Co., 45 Iowa, 378; 24 Am. Rep. 784.)

And it has been repeatedly held that where any fact which would constitute a breach of a condition precedent to any liability of the company on the policy is fully known to an agent of the company, local or general, who is authorized to consummate the contract of insurance, the knowledge of such agent is the knowledge of the company, and his act in executing and delivering the policy as a valid and completed contract is an exercise of the power of the company, and constitutes a waiver by the company of such condition precedent, and also a waiver of the general requirement that waivers of conditions expressed in the policy shall be in writing indorsed on the policy. (Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 434; Whited v. Germania Fire Ins. Co., 76 N. Y. 418-421; American Ins. Co. v. McCrea, 8 Lea, 513520; 41 Am. Rep. 647; Reaper City Ins. Co. v. Jones, 62 Ill. 458; Westchester Fire Ins. Co. v. Earle, 33 Mich. 151153; Viele v. Germania Ins. Co., 26 Iowa, 58; Murphy v. Southern Life Ins. Co., 3 Baxt. 440; 27 Am. Rep. 761; Gerb v. Insurance Co., 1 Dill. 449; Devine v. Home Ins.