done for the insurer into the acts of the insured. The admission of the verbal testimony to show that the application was filled up by the agent of the company, and that the facts were correctly stated to him, but that he, without the knowledge of the insured, misstated them in the application, is not in violation of the rule that verbal testimony is not admissable to vary a written contract. It proceeds upon the ground that the contents of the paper was not the statement of the applicant, and that the insurance company, by the acts of their agents, is estopped to set up that it is the representation of the insured." A line of cases hold that, where the solicitor of insurance is expressly limited in his authority, in the manner of taking the application, and where such limitation is brought home to the knowledge of the insured at the time the application is signed, the insured is bound by the limitation. Appellant's counsel labor to show that this case comes within the principle of such cases. We cannot assent to this view of the facts. It is true that defendant's agent, who took the risk in question, had only the authority to solicit the risk, and procure and forward the application of the plaintiff, and that the plaintiff fully understood that such was the nature and limit of the agent's powers in the premises. But there is nothing in this case tending to show that there was any restrictions whatever upon the agent's authority in the matters intrusted to his charge, viz., the matter of soliciting and procuring the application for the insurance in question. As to such duties the agent had, prima facie, plenary powers co-extensive with the matter intrusted to him, and such powers cannot be narrowed by limitations not communicated to the insured. See May, Ins. § 144, note 1; Miller v. Insurance Co., 31 Iowa, 232.

The defendant sent its policy direct to the plaintiff, and the latter had possession of it some months prior to the loss. A copy of the application, containing the false answers as written by the agent, was indorsed upon the back of the policy, but such indorsement was not referred to in the body of the policy. The trial court found that the plaintiff did not at any time object to the answers as stated in the application, or request the defendant to correct the same. The evidence, however, is con

clusive that the plaintiff did not in fact know that a copy of the application was indorsed upon his policy, nor discover the errors in the application respecting the incumbrances, until the day preceding the trial. Under these circumstances, the question arises whether the plaintiff, despite the contrary fact, is not conclusively presumed to have read and become acquainted with the contents of the policy, including the copy of his application for insurance indorsed on the policy. If such is the presumption of law, then the further question arises whether the plaintiff is guilty of such laches in not seeking a correction or reformation of the contract as will defeat his recovery upon the policy. It is well settled that, where an insurance policy is delivered to the applicant, he is presumed to know its contents, and cannot evade a forfeiture for a violation of its provisions on the ground that he never read it. Wood, Ins. § 503; Smith v. Insurance Co. (Dak.) 43 N. W. Rep. 810; Hankins v. Insurance Co. (Wis.) 35 N. W. Rep. 34; Cleaver v. Insurance Co., (Mich.) 32 N. W. Rep. 660. And where a paper is physically annexed to the policy, or indorsed thereon, and adopted in the policy as a part thereof, the same will form a part of the insurance contract. Wood, Ins. § 137, notes 1, 2, 3; also § 149, id.; Murdock v. Insurance Co., 2 N. Y. 210; Duncan v. Insurance Co., 6 Wend. 488; Emerson v. Murray, 4 N. H. 171; Roberts v. Insurance Co., 3 Hill, 501. The case of Insurance Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. Rep. 837, very closely resembles the case at bar as to the feature under consideration. Mr. Justice Field, in delivering the opinion of the court, said: "There is another view of this case equally fatal to a recovery. Assuming that the answers of the assured were falsified, as alleged, the fact would be at once disclosed by the copy of the application annexed to the policy, to which his attention was called. He would have discovered by inspection that a fraud had been perpetrated not only upon himself, but upon the company, and it would have been his duty to make the fact known to the company. He could not hold the policy without approving the action of the agents, and thus becoming a participant in the fraud committed. The retention of the policy was an approval of the application, and of its statements." Citing Insurance Co. v.

Neiberger, 74 Mo. 167; Richardson v. Insurance Co., 46 Me. 394. The application was made a part of the policy in express terms, and a copy thereof was indorsed upon the policy. This juxtaposition of the application with reference to the policy makes the application a part of the policy, within the rule established by the authorities above cited. Upon receiving the policy with copy indorsed thereon, the plaintiff is legally chargeable with notice and knowledge of the entire terms of the insurance contract, and he is estopped from denying such knowledge. It was the plaintiff's duty to have taken steps at once, upon receiving the policy, to have the same corrected or rescinded. He did not do so, and, by his silence when required to speak, he became constructively a participant in the original fraud of the agent, and thereby forfeited his right under the policy; and, unless defendant has waived such forfeiture, the plaintiff must fail to recover.

Applying the law to the facts, the policy in question was defeated in its very inception; and, by reason of plaintiff's silence as to the fraud, the policy never attached to the risk. Comp. Laws, § 4164. But a forfeiture may be waived by a party entitled to its benefit. In this case there is no claim of an express waiver. The trial court found "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, and by way of counter-claim in its 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." We think this conclusion of the trial court is correct. To counter-claim upon a premium note is equivalent to an independent action by the defendant against the plaintiff to recover the stipulated consideration for carrying the risk. After full knowledge that the claim was fraudulent in its inception, and consequently that the policy was voidable at the option of the company, the latter saw fit to make demand of its premium by a counter-claim in the answer. It is well settled by the adjudications that the receipt of premium after knowledge of forfeiture operates to waive the

forfeiture, also that an extension of time upon a premium note after the due-day of the note has the same effect upon a forfeiture caused by non-payment of the note at maturity. We think that this case comes within the principle of these cases. The demand for judgment upon a note given for the premium is a formal recognition by the defendant, made after full knowledge of the facts which would defeat the policy in its inception, of the original binding force of the contract. The assertion of the demand assumes the original validity of the policy, and such assumption is made after knowledge that the policy was voidable for a fraud which would defeat both the note and the policy at defendant's option. We hold that this waives the forfeiture caused by the silence of the plaintiff as to the false answers in the application.

The case would have been widely different if the defendant had elected to stand only on the other defense pleaded in the answer to the complaint. The defense that the plaintiff sued too late, or that the requisite notice of loss, or preliminary proofs of loss. were not furnished, are all and singular such defenses as do not go to the original validity of the note and policy, and, whether any and all of such defenses are true or untrue, would not affect the validity of the note or the policy as original contracts. It follows that pleading the counter-claim would have been entirely proper, if set up only in connection with the last-mentioned defenses, and would not have operated to estop the defendant of availing itself of such defenses. But the defendant has not seen fit to pursue that course, and must accept the consequences of the election it has made to sue for the premium with full knowledge of the forfeiture of the policy for fraud in its inception.

The policy provides that the loss will be paid according to the terms and conditions of the policy, "but not until requisite proofs, duly certified and sworn to by assured and one disinterested party, are received at the office of the company in Chamberlain, Dakota." The insurance was for the term of "six months, from the 6th day of May, 1885, at noon, to the 6th day of November, 1885, at noon." The policy further provides: "All loss and damage under this policy shall be due and payable

between the 20th day of November and the first day of December of the year in which the loss occurs." The fourth finding of fact is as follows: "That the plaintiff never made any proof of loss which was required by the terms of said policy." The fifth finding is as follows: "That the defendant has waived proofs of loss by refusal 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." It is elementary that where an insurance policy requires the insured, in the event of a loss, to furnish certain preliminary proofs of loss, a failure to do so, unless waived, will operate to defeat a recovery under the policy. The time within which proofs are to be furnished is not stated, in terms, in the policy under consideration. Such proofs must therefore, under the law, be furnished within a reasonable time, in view of all of the circumstances of the case. Defendant's counsel claims that the time within which the proofs are to be furnished is practically settled by the policy, in view of the fact that all claims for damages become "due and payable" between November 20th and December 1st of the year in which the loss occurs. This position seems to be reasonable and well taken. It would certainly be unreasonable to hold that the defendant who is entitled to receive the proofs of loss before paying the loss, should not be entitled to receive such proofs until subsequent to the date when the loss would be absolutely due and payable by the terms of the policy. But aside from this, in view of the perishable nature of the insured property, we should hold, under a hail insurance policy upon growing grain which requires proofs to be furnished as a condition precedent to the payment of the loss, that such proofs must be furnished within a reasonable time after the loss, and within time to enable the company to examine the property, and determine upon the amount of its liability, if liable, before the grain disappeared as a result of natural causes. In this case the hail-storms which did the damage occurred in the month of July. It would be obviously unreasonable to hold that the time for furnishing proofs of loss could be prolonged after November 20th of the same year. After that date the proofs would be of no value; for it would then be too late in the season to investigate the loss