UNITED FIREMEN'S INS. CO. v. THOMAS, 82 F. 406

JENKINS, Circuit Judge. If, under the construction of the statute of the state of Illinois held by the supreme court of that state in Insurance Co. v. Ruckman, 127 Ill. 364, 376, 20 N. E. 77, Prindeville must he deemed the agent of the insurance company with respect to the transaction in hand, the question is presented whether his knowledge, prior to the issuance of the policy, of intended other insurance, will vitiate a stipulation in the policy forbidding such other insurance.

It is the settled law with respect to written contracts of insurance, as well as to other written contracts, that all negotiations or agreements leading up to the written contract are merged in it, and that parol evidence of a supposed prior agreement cannot be entertained to contradict the express stipulations of the written contract. Thus, in Thompson v. Insurance Co., 104 U.

S. 252, 259, it was ruled that “a parol agreement, made at the time of issuing a policy, contradicting the terms of the policy itself, like any other parol agreement inconsistent with a written instrument made contemporary therewith,is void, and cannot be set up to contradict the writing.” We have had occasion to speak to the same effect, and in no doubtful language. Union Stock Yards & Transit Co. v. Western Land & Cattle Co., 18 U. S. App. 438, 453, 7 C. C. A. 660, and 59 Fed. 49; Gorrell v. Insurance Co., 24 U. S. App. 188, 11 C. C. A. 240, and 63 Fed. 371; Lumber Co. v. Comstock, 34 U. S. App. 414, 18 C. C.

A. 207, and 71 Fed. 477. The written contract speaks conclusively the agreement of the parties, and cannot he contradicted by parol. Therefore a supposed agreement to permit other insurance, made before the written contract, cannot avail to defeat the subsequent express stipulations of the written instrument. Much less can mere knowledge of an intention of the proposed assured to effect, or that he had effected, other insurance, avoid the conditions of the subsequent written contract. The assured knows, or is bound to inform himself, of the conditions and stipulations of his contract before its acceptance.

He should not he allowed to accept the contract, and afterwards defeat an essential condition of it, through plea of ignorance of its conditions. Nor do we understand that the doctrine of waiver can have application here. A waiver is an intentional relinquishment of a known right, — an election by one to dispense with something of value, or to forego some advantage he might have taken or insisted upon. Warren v. Crane, 50 Mich. 301, 15 N. W. 465. Mr.

Bishop thus defines the term: “Waiver is where one in possession of any right, whether conferred hy law or hy contract, and with full knowledge of a material fact, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon it. Thereupon ho is said to have waived it, and he is precluded from claiming anything by reason of it afterwards.” Bish. Cont. § 792. Bui: manifestly there can be no waiver of a nonexisting right, — of that which does not exist.

Delivery of the policy containing the stipulations against other insurance under circumstances which indicate a previous or contemporaneous parol agreement that such other insurance would be permitted cannot avail, for within the decision in Thompson v. Insurance Co., supra, and the other cases cited, no prior or contemporary parol agreement' can be set up to contradict the writing.

The waiver must be subsequent to the written contract, and, to be operative, must be made not only with knowledge of the fact of other insurance, and with intent to waive the provisions of ike existing contract, but must be supported by a valuable consideration, or become operative by way of estoppel. Here, subsequent to i lie supposed knowledge of an intent to effect other insurance, the parties stipulated by their contract that it should be void if other insurance had been or should be effected, and that no waiver of any condition of the contract should be valid unless written upon or attached to the policy.

An intent to waive cannot be entertained from the mere fact of knowledge in the face of an express term of the contract made and delivered subsequent to such knowledge. There was here shown no intent or agreement to waive subsequent to the delivery of the contract, and no consideration for a waiver is disclosed, nor is any estoppel proven. Títere was no act or conduct upon the part of the insurance company subsequent to the delivery of the contract, inducing change of position by the assured.

He knew, or should have known, of the conditions of the policy, and, so knowing them, was informed of the terms of the contract proposed by the insurance company, and with such knowledge paid the premium demanded. There was, subsequent to the delivery of the contract, no act: by the insurance company prejudicial to the assured. It was the duty of the latter to have-disclosed to the company the other insurance effected, and to procure to be indorsed upon the policy a written waiver of the condition. We have ruled upon the precise question in Union Nat. Bank v. German Ins. Co., 34 U. S. App. 397, 18 C. C.

A. 203, and 71 Fed. 473, — a case that is the counterpart of the one in hand. There, prior to the issuance of the policy, the agent of the company knew of and had himself issued other insurance upon the property covered by the policy. We there held that such knowledge could not affect the written stipulations of the subsequent contract, and that the policy declared conclusively the agreement of the parties. WTe are unable to distinguish that case from the'one before us, and our ruling here must accord with that decision.

In a proper case, and in a proper proceeding, a contract which, through error, mistake, or fraud, does not speak the actual agreement of the parties, may be reformed in equity. Such was the case in Insurance Co. v. Ruckman, supra, where reformation of the policy was sought and decreed in equity. No such case is presented here. The assured brought suit at law upon the policy, and stands upon the very terms of his contract.. He asks no reformation of it, and cannot, in this action at law, avoid its express stipulations.

Error is also assigned for certain remarks of the presiding judge during the course of the trial and upon the examination of witnesses. The brief of counsel does not, as it should, refer us to the pages of the record which are thought to contain the objectionable language. We might properly, therefore, and for that reason, decline to entertain the complaint, and in fact it appears from an examination that some of the language complained of and stated at large.in the bfief is not contained in the record.

In view of our ruling upon the question previously considered, we think it unnecessary to pass upon the language of which complaint is made. It is sufficient to say upon the subject in general that every party in a court of justice is entitled to a fair and impartial trial of his cause, and that neither court nor counsel, may rightfully use language in the presence and hearing of a jury which shall tend to excite passion or prejudice, or prevent calm, dispassionate consideration of the case, Reynolds v. U. S., 98 U. S. 145, 168; Hicks v. U. S., 150 U. S. 442, 452, 14 Sup. Ct. 144; Starr v. U. S., 153 U.

S. 614, 14 Sup. Ct. 919; Hickory v. U. S., 160 U. S. 408, 425, 16 Sup. Ct. 327; Railway Co. v. Meyers, 24 U. S. App. 295, 304, 11 C. C. A. 439, and 63 Fed. 793. The judgment is reversed, and the cause remanded, with directions to the court below to award a new trial.