Co., 32 Wis. 471; Pelkington v. National Ins. Co., 55 Mo. 172; Planters' Mut. Ins. Co. v. Lyons, 38 Tex. 253; Peoria Ins. Co. v. Hall, 12 Mich. 202; Carroll v. Charter Oak Ins. Co., 38 Barb. 402; Warren Mfg. Co. v. Etna Ins. Co., 2 Paine, 501; N. E. Fire Ins. Co. v. Schottler, 38 Ill. 166.) It is also well settled that an insurance company cannot so limit its capacity to contract by general stipulations against waiver of conditions, or that its contracts or waivers must be in writing, that it cannot by its agents make an oral contract or an oral waiver not forbidden by the statute of frauds. (Trustees of Baptist Church v. Brooklyn Ins. Co., 19 N. Y. 305; Insurance Co. v. Norton, 96 U. S. 234; Carragi v. Atlantic Fire Ins. Co., 40 Ga. 141; Lamberton v. Conn. Fire Ins. Co., 39 Minn. 129; Westchester Fire Ins. Co. v. Earle, 33 Mich. 153; Reiner v. Dwelling House Ins. Co., 42 N. W. Rep. 208; Steen v. Niagara Fire Ins. Co., 86 N. Y. 326; 42 Am. Rep. 297.)

Whether or not any particular agent has the general power of the company to make an oral contract or an oral waiver of a condition, notwithstanding the provision in the policy requiring a writing, is a question of fact. (Insurance Co. v. Norton, 66 U. S. 234; Steen v. Niagara Fire Ins. Co., 86 N. Y. 326; 42 Am. Rep. 297.)

The authorities before cited show that a local agent who is clothed with general power to solicit and consummate contracts of insurance within a certain territory stands in the stead of the company, and represents its whole power to give validity to the contracts which he is authorized to execute and deliver, and to waive conditions precedent to liability by oral agreement, including the condition as to the mode of waiver of such conditions precedent. In this case, the circumstance that the company had general agents for the state located at San Francisco does not affect the question, since it conferred its whole power in regard to the policy in question upon its agent at Stockton, who appears to have received his appointment and instructions directly from

the home office, in the state of New York, and who signed himself as the direct agent of the defendant. Of the authorities herein before cited, the following directly affirm the ostensible power of such a local agent to bind the company by waiver of any condition precedent to its liability, and to dispense with the requirement that such waiver shall be in writing indorsed on the policy, so far as to estop the company from questioning its original liability on the ground that the waiver made at the time of delivery of the policy was not indorsed upon it. (Gerb v. Insurance Co., 1 Dill. 449; Westchester F. Ins. Co. v. Earle, 33 Mich. 151-153; Whited v. Germania Fire Ins. Co., 76 N. Y. 418; Viele v. Germania Ins. Co., 26 Iowa, 58; Murphy v. Southern L. Ins. Co., 3 Baxt. 440; 27 Am. Rep. 761; American Ins. Co. v. McCrea, 8 Lea, 513-520.)

3. It is contended by counsel for respondent that the judgment of nonsuit should be sustained because the plaintiffs did not demand nor obtain an award of arbitrators as to the amount of loss. This, it is said, was a condition precedent to a right to maintain this action.

No arbitration is contemplated or required by the terms of the policy, except in case of a failure of the parties to agree upon the amount of the loss. After the fire, and within the time prescribed by the policy, the plaintiffs furnished to defendant the requisite proofs of loss to the extent of one thousand dollars,-the amount alleged in the complaint,-and thereupon, without questioning or making any objection to the amount of the loss claimed, or to the proofs thereof, the company, for other reasons, not only denied its liability, but denied the existence of the policy, claiming that it had been canceled two months before the loss. This was sufficient evidence that the defendant acquiesced in the amount of the loss claimed, and thereby waived its right to have it determined by arbitration. (Lasher v. N. W. Nat. Ins. Co., 18 Hun, 98; 55 How. Pr. 318; Western Horse and Cattle

Ins. Co. v. Putnam, 20 Neb. 331; Meutz v. American F. Ins. Co., 79 Pa. St. 478; 31 Am. Rep. 80; Phoenix Ins. Co. v. Badger, 53 Wis. 284; Wallace v. German-American Ins. Co., 4 McCrary, 23; Nurmey v. Fireman's Ins. Co., 30 N. W. Rep. 350.) Then, it is well settled by a long line of authorities that the denial of all liability upon other grounds is a waiver even of the condition requiring proofs of loss. (Continental Ins. Co. v. Ruckman, 127 Ill. 364; Phoenix Ins. Co. v. Spiess, 8 S. W. Rep. 453; Norwich etc. Ins. Co. v. W. M. Ins. Co., 34 Conn. 561; McBride v. Republic Ins. Co., 30 Wis. 562; Donahue v. Ins. Co., 56 Vt. 382; Lebanon Ins. Co. v. Erb, 112 Pa. St. 149; Zielke v. London Ass. Co., 64 Wis. 442; O'Brien v. Ohio Ins. Co., 52 Mich. 131; Ball etc. Co. v. Aurora Ins. Co., 20 Fed. Rep. 232; Carroll v. Girard F. Ins. Co., 72 Cal. 297.) Under the circumstances, an offer by the plaintiffs to arbitrate would have been an idle act, which "the law neither does nor requires." (Civ. Code, sec. 3532.) None of the California cases cited to this point by respondent's counsel are opposed to the position here assumed. In Old Saucelito L. & D. D. Co. v. C. U. A. Co., 66 Cal. 253, there was an actual dispute as to the amount of the loss, and plaintiff alleged that it had offered to submit to arbitration; but the court found to the contrary. So in the case of Adams v. Insurance Companies, 70 Cal. 198, it appears that the only dispute between the parties was an express dispute as to the amount of the loss. In Carroll v. Girard Fire Ins. Co., 72 Cal. 297, the difference as to the amount of loss had been submitted to arbitration and an award had been made. The defendant pleaded this award as a limitation upon the amount to be recovered, and the plea was held good.

As it appears from the bill of exceptions that the evidence on the part of the plaintiffs substantially, and even strongly, tended to prove all the facts necessary to entitle the plaintiffs to recover, I think the judgment of

nonsuit was erroneous, and should be reversed, and that the cause should be remanded for a new trial.

BELCHER, C. C., and HAYNE, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment of nonsuit is reversed, and the cause remanded for a new trial.

[No. 13357. In Bank.-February 28, 1890.]

YOSEMITE STAGE AND TURNPIKE COMPANY, PETITIONER, V. JOHN P. DUNN, CONTROLLER, ETC., RESPONDENT.

CONSTITUTIONAL LAW-GIFT BY LEGISLATURE-DEFINITION.-To constitute a gift by the legislature within the inhibition of section 31 of article 4 of the constitution, there must be a gratuitous transfer of the property of the state, made voluntarily and without consideration. PURCHASE OF UNEXPIRED LEASE OF YOSEMITE AND WAWONA ROAD.The act of the legislature (Stats. 1888, p. 142) providing for the purchase of the unexpired lease of the Yosemite and Wawona road, and making an appropriation therefor, is constitutional, and such appropriation does not constitute a gift, the lease having been made within the general power of the board of commissioners appointed to manage the Yosemite Valley and Mariposa Big Tree Grove. ID.-POWERS OF COMMISSIONERS OF YOSEMITE VALLEY-LEASE OF TOLLROADS-RENEWAL OF LEASE-JURISDICTION OF SUPERVISORS-PUBLIC HIGHWAYS.-The roads laid out within the grant made by act of Congress to the state of California of the Yosemite Valley and Mariposa Big Tree Grove, under the authority of the board of commissioners provided for in the act, are the property of the state, subject to the exclusive jurisdiction of such board of commissioners, who have general power to make leases thereof, not exceeding ten years, and may renew a lease therof for the same period. Such roads do not fall within the jurisdiction of the supervisors, or become free public highways by the expiration of the first ten-year lease, by operation of section 2619 of the Political Code.

APPLICATION for a writ of mandate. The facts are stated in the opinion.

Lloyd & Wood, for Petitioner.

Attorney-General Johnson, for Respondent.

FOOTE, C.-This is an application for a writ of mandate to compel the controller of the state to draw his warrant upon the state treasurer for the sum of eight thousand dollars in favor of the petitioner.

The controller refuses to draw the warrant, because, as he alleges, the legislature had no power, under the constitution, to pass the law, by virtue of which the petitioner claims the right to draw the eight thousand dollars from the treasury.

It is contended by the counsel for the respondent that the money voted to the petitioner, by the act in question, is a gift, and as such is inhibited by article 4, section 31, of the state constitution.

The portion of the constitution under consideration is:

"Sec. 31. The legislature shall have no power, . . . nor shall it have power, to make any gift, or authorize the making of any gift, of any public money or thing of value to any individual, municipal, or other corporation whatever."

The Civil Code, section 1146, says: "A gift is a transfer of personal property, made voluntarily, and without consideration."

To be a gift, this voluntary transfer must be gratuitous, a handing over to the donee something for nothing.

Upon the face of the act of the legislature upon which the petitioner's contention is made, it appears that the legislature appropriated eight thousand dollars to purchase from the Yosemite Stage and Turnpike Company its road running from the line of the grant to the floor of the valley, by Inspiration and Artists' points, a distance of eight miles, and known as the Yosemite and Wawona road. (Acts 1888, p. 142.) It is clear, therefore, that, so far as the legislature was concerned, its intention was to purchase a road in which it believed the petitioners had an interest, at least, worth purchas