this application was taken; that the answers to said questions were inserted in said application by the said Strong; that the plaintiff answered truthfully each of said questions, but that said questions were erroneously and incorrectly inserted in said application by said Strong before the signing of said application; that after the said application had been written out the same was signed by the plaintiff without reading the same, or requesting the same to be read to him; that at same time plaintiff could readily read and write; that defendant company did not have any knowledge or notice of the acts of Strong or of the plaintiff in the making out of said application, and did not know that said application had been read by or in the hearing of said plaintiff, except such notice and knowledge as would be imputed to the defendant by the notice to and knowledge of Strong, its said agent, who had notice and knowledge of said facts; that upon the receiving of the said application the defendant accepted the same, and sent its policy directly to the plaintiff, with a correct copy of the application indorsed upon the back of said policy, and that in issuing said policy defendant relied solely upon the application in the form as it actually existed, and in the form in which it was signed by plaintiff; that the plaintiff knew that said. Strong could not issue not issue policies, and knew that the defendant would act upon the application in the form in which he signed it, and that the said Strong would send the application as it existed to the company, and also knew that the company would send the policy, in the event that they accepted the application, directly to the plaintiff; that the plaintiff received said policy, with a copy of the application indorsed on the back thereof, during the latter part of May, 1885, and retained the same up to the date of bringing suit, and did not at any time before or after the loss make any objection to the application as copied on the back of said policy, or ask any corrections to be made in said application; that the plaintiff read a portion of his policy soon after the same was received, and discovered that the property was not correctly described, and thereupon took the same to an attorney, and took advice upon the validity of the policy on account of the said misdescription; that the plaintiff never made

any proof of loss which was required by the terms of said policy; that the defendant has waived proofs of loss by refusing to pay the said loss upon other grounds, and by a failure to make objection promptly and specifically upon the ground of failure of proof; that on the 15th and 28th days of July, 1885, the said 100 acres of wheat was damaged by hail, and that the plaintiff's loss sustained thereby is in the sum of $1,375.04; that there is due the defendant upon the promissory note described in the counter-claim the sum of $98.50; that the plaintiff made and sent by registered mail to the defendant a statement of each of said losses, on the 15th and 28th days of July, 1885, not sooner than five nor later than ten days thereafter, respectively; and that said wheat at the time of each of said losses was yet green and not ripe; that the defendant has never made any written request that the plaintiff submit the amount of the losses, or any of them, to arbitration, but that the plaintiff, on or about the 7th day of August, 1885, made to the defendant a written request that the amount of said losses be submitted to appraisers, but that said defendant neglected to submit said losses to appraisers, and did not comply with the written request of said plaintiff in that regard; that the loss herein sued upon occurred in July, 1885; that this action was not commenced against the defendant until March, 1888; that there is no notice upon the face of the policy calling the plaintiff's attention to the fact that a copy of the application is indorsed upon the back thereof, nor did plaintiff have actual notice that a copy of said application was indorsed upon the back of said policy until after this suit was brought; that immediately upon signing said application the same was delivered by the plaintiff to the said Strong, and by him forwarded to the defendant; that, at the time of the service of defendant's answer to the plaintiff's complaint in this action, the defendant had full knowledge of all the facts constituting the grounds of forfeiture of said policy and with such knowledge, by the way of counter-claim in their said answer, defendant seeks to recover from the plaintiff the amount of the premium note given by said plaintiff as a consideration for the issuance of said policy, and by so doing has waived all forfeiture of said policy."

The appellant assigns the following errors: "(1) The court erred in permitting the plaintiff to testify, over the objection of the defendant, that he answered each of the questions in the application truthfully, and that Strong falsely inserted the answers in the application, and in allowing plaintiff to vary the terms of a written application by oral testimony. (2) The court erred in permitting the plaintiff to answer the following question over the objection of the defendant: 'Question. Now, you may state if anything was said by you to Mr. Strong on this subject of incumbrance upon your land prior to making out and signing this application?' (3) The court erred in denying defendant's written motion for judgment upon the evidence. (4) That upon the findings of the court the plaintiff is not entitled to judgment, and the court erred in rendering judgment upon said findings. (5) The court erred in denying defendant's motion for a new trial."

We have carefully examined the testimony contained in the record, and find that the findings of fact as made by the trial court are amply sustained by the evidence. The policy provides that "no suit or action for the recovery of any claim for loss or damage under this policy shall be sustained in any court of law or equity unless such suit or action shall be commenced before the expiration of six months next ensuing after the loss." This action was not brought within the time limited, and would have been barred at common law for that reason, but the stipulation limiting the time is void under a provision of our Civil Code. Comp. Laws, § 3582. There is no substantial conflict in the testimony. The main questions arise upon evidence not controverted, and upon the facts as found by the trial court. Do such facts and such evidence warrant the judgment in plaintiff's favor? This question is far from being one of easy solution in view of the irreconcilable conflict found in the authorities bearing upon the various points involved.

It is conceded that the answers contained in plaintiff's written application for the insurance, which relate to incumbrances upon the land and upon the crop insured, are untrue; but the learned counsel for the respondent contends that such answers relate to matters wholly immaterial, and, as counsel claims, do

not constitute substantial warranties. It certainly is not apparent to this court that representations as to incumbrances, which in fire risks are conceded to be important and material, are equally so when the insurance is a hail risk. Nevertheless we must hold that the parties have a right to make a stipulation to the effect that any given représentation as to a matter of fact made as a basis for the contract shall be deemed a warranty, and a material part of the contract. The application declares that "the statements made by me, and answers to questions above given, are true, and a warranty on my part, and are the basis upon which I ask hail insurance by the Dakota Fire & Marine Insurance Company on the crops herein described." The policy in question expressly refers to the above in the following language: "Assured's application, of even number and date herewith, on file in the office of the company in Chamberlain, Dakota, is hereby referred to as a part hereof, and is a warranty on the part of the assured, and the basis upon which this insurance is written." The statements contained in the application with respect to the incumbrances are therefore expressly made a part of the contract. The policy also declares "that any misrepresentation or false statement or concealment of facts in the application shall operate to render the policy void." Under these clear stipulations of the contract it does not, in our opinion, matter whether the representations in the application as to the incumbrances on the property are or are not material in fact. If not intrinsically material, they have been made so by express agreement of the parties; and that agreement, under the provisions of the Code, must prevail. Section 4163, Comp. Laws, reads as follows: "A policy may declare that a violation of specified provisions thereof shall avoid it; otherwise the breach of an immaterial provision does not avoid the policy." See id. § 4159, and Wood, Ins. § 137.

But it is further contended by respondent's counsel that defendant is estopped from claiming a forfeiture of the policy on account of the false answers as to incumbrances contained in the application for the reason that such answers were wholly unauthorized by the plaintiff, and were falsely written into the application by E. E. Strong, the soliciting agent, despite the

fact that he (Strong) was fully and truthfully informed by the plaintiff as to the incumbrances. The fact of deception practiced by the agent is not questioned; but who shall shoulder the consequences of such deceptions? is a question much mooted in the adjudicated cases, and one which has given this court no little difficulty. For whom was Strong acting, and who was he representing, when soliciting and taking plaintiff's application for the insurance? The earlier cases held quite uniformly that, where the insured signed a written application as a basis for the contract of insurance, he adopted all of its contents, and was bound by it, and that if, by his request or permission, the solicitor of the insurance acted for him in filling out the application, such solicitor was so far forth the agent of the insured, and not the agent of the company. Some courts still adhere to this holding, but the decided weight of authorities is to the contrary. Wood, Ins. § 139, and authorities cited in note 1; Miller v. Insurance Co., 31 Iowa, 216; Insurance Co. v. Eddy, 55 Ill. 213; Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Mahone, 21 Wall. 152; Eams v. Insurance Co., 94 U. S. 621; Rowley v. Insurance Co., 36 N. Y. 550; May, Ins. § 143, and authorities cited; Kausal v. Association, 31 Minn. 17, 16 N. W. Rep. 430. In the case last above cited the supreme court of Minnesota uses the following language, which voices the result of the later authorities: "Agents for an insurance company, authorized to procure applications for insurance, and to forward them to the company for acceptance, must be deemed the agents of the insurers in all that they do in preparing the application, or in any representations they may make as to the character or effect of the statements therein contained. Hence, when such agent, either by his direction or direct act, makes out an application incorrectly, notwithstanding all the facts are stated to him by the applicant, the error is chargeable to the insurer, and not to the insured. This is the rule in case of 'mutual' as well as 'stock' or 'proprietary' companies. The rule is not affected or changed by a stipulation inserted in the policy subsequently issued that the acts of such agent in making out the application shall be deemed the acts of the insured, and not of the insurer. Such stipulation does not convert acts