author: TaiiXapbebo, J.

text:
    No. 718.
    Auguste Pino v. Merchants’ Mutual Insurance Company
    Where a policy of insurance contains a condition that the insurance shall not be binding until the actual payment of the premium, the insurers, if they elect todo so, may waive the condition, it being one inserted solely for their benefit; and parol testimony is admissible to prove the waiver.
    Where an application for insui*ance is made and accepted, and the policy is made out in duplicate, and the name of the assured, as such, put down on the books of the insurance company, the con. tract is complete; and, unless the company have required payment of the premium, or given notice that they will not be bound until the premium is paid, there is a waiver of such payment.
    Px'oof of such a waiver is no violation of the rule prohibiting parol evidence to vary or contradict a written contract.
    The rule is well settled, in relation to the contract of insurance, that ail matters which show the transaction to be void, on the ground of fraud or otherwise, must be specially pleaded.
    Evidence of fraud is inadmissible under the general issue.
    A PPEAL from the Sixth District Court of New Orleans, Buplanlier, J.

      G. Bufour, L. Gasiera and Garleton Hunt, for plaintiff and appellee.

      J. W. Gurley, L. Pierce and A.& M. Voorhies, for defendants and appellants.

      Brief of G. Hunt and L. .Gasiera, for plaintiff and appellee.
    —Auguste Pino has sued the Merchants’ Mutual Insurance Company to recover the sum of $2,086 42, the amount of damage caused him by a fire which occurred at No. 17 Gasquet street, on the 1st of March, 1865. The basis of his claim is a policy of insurance effected with the Merchants’ Mutual Insurance Company, against loss by fire, for six thousand five hundred dollars, on household furniture, wines, liquors, provisions, etc.
    To this demand the insurance company filed the following answer : “The defendants now come and say that they are not responsible on any policy insuring plaintiff against ‘perils by fire,’ from the 25th of February, 1865, and ending the 25th of February, 1866, as alleged in his petition; they show that the fire on premises of plaintiff occurred on the morning of the 1st of March instant, and that after said fire, and later in that day, without notice to defendants of said event, the said plaintiff came and paid the premium stipulated by him.
    “And now defendants show that, by the second condition in said policy, there was no insurance until the premium was paid, and this he pleads ; and further answering, should any further be necessary, they deny the allegations contained in the petition, and pray to be hence dismissed with costs, and for all further relief,” etc., etc.
    There was judgment in the Court below in favor of the plaintiff, and the defendants appealed.
    The testimony adduced on the trial below will be briefly reviewed, so as to place the case properly before the Court. * * * * *
    The attempt to refute the allegations made by the plaintiff of his loss is confidently submitted to the Court without further argument. The testimony of all of plaintiff’s witnesses is direct, truthful, emphatic and unanimous; that of the two firewardens, on the other hand, consists of merely speculative reasoning, or in the language contained in the admission of Captain Younnes himself, of “ conjecture !”
    The legal ground on which the defendants rest their objection to the payment of plaintiff’s demand—and the only one specially pleaded in their answer on file—is, that the fire on plaintiff’s premises occurred on the morning of the 1st of March instant, and that later in that day, without notice to defendants of said event, the plaintiff paid the premium stipulated by him, and that by the second condition in the policy there was no insurance until the premium was paid.
    The non-payment of the premium by the plaintiff until several hours after the fire, is a conceded fact in this case; but it is the universal practice in New Orleans and elsewhere for underwriters to require payment of the premium only long after insurance is effected ; and it is always competent for the assured to prove that the insurance company acted according to this established custom, although the policy contain a condition that there is to be no insurance until the premium be paid.
    The defendants show, therefore, a misapprehension of correct principles of law, when they oppose the introduction of evidence to establish that it was the custom of their office to effect insurance and deliver policies before the premiums due on them were paid.
    In treating of the promise of insurers, and their receipt for the premium, Marshall says:
    “The next clause in the policy is that by which the insurers bind themselves to the insured for the true performance of their contract, and confess themselves paid the consideration or premium by the insured, after the rate specified, ..........
    “ The payment or non-payment of the premium, therefore, can have no effect upon the insurance. Every insurer may insist on being paid the premium before he subscribes the policy; but having once subscribed it and given credit for the x>remium, no matter to whom, he shall not be afterwards at liberty, when a loss has happened, to object the want of consideration for his promise.” Marshall on Insurance, vol. 1, book 1, chap. 7, l 3.
    And Mr. Phillips, in his work on Insurance, in laying down the law which governs the execution of the contract of insurance, observes :
    “Though a policy is a contract between two' parties, each of whom is under certain obligations, and entitled to demand of the other a compliance with certain implied and expressed conditions and stipulations, it is subscribed only by the insurer himself, or by his agent or attorney, and when so subscribed and actually or constructively delivered, unconditionally, to the assured, it is a completed and binding' contract.”
    “In the usual form of the policy, the insured on a marine risk acknowledges payment of premium; and, in fire and life policies, of the whole or first annual premium, or deposit or first installments, and accordingly always imports a settlement by cash or premium note, of a part or the whole of the premium simultaneously with the execution and delivery of the policy. This is equivalent to saying, that the contract is not in force until such payment has been made. ”
    “ But the rules of an insurance company, or the agreement of the parties, may control the rule just stated, and the policy be binding upon the insurers, though the premium has not been paid or any note given for it, nor the policy actually delivered from the insurance office.” Phillips on Insurance, vol. 1, \ á, marg. pag. 22, 23.
    And it is expressly declared by Arnould that, in point of fact, “the premium is never paid, in the actual course of London business, till long after the policy is effected, ......” Arnould on In., vol 1, marg. p. 36.
    So likewise, Parsons lays it down, “that the policy which usually states the reception of the premium binds the insurers, although the premium has not been paid, nor a note for it given ; and this even if the policy was not delivered from the office, if it wras only delayed, and there was evidence otherwise of a completion Of the contract. And if the policy provides that there shall be no insurance until the actual payment of the premium, as this provision is inserted for the benefit of the insurer, it may be waived by him or his agent.” Parsons on Maritime Law, vol. 2, p. 28.
    And the effect of the acknowledgment of the payment of premium contained in a policy of insurance, is disposed of by Mr. Phillips in these words:
    “It does not appear that there is any material distinction between this acknowledgment in a policy of insurance and in other instruments, respecting which the prevailing doctrine is, that the acknowledgment of payment in a deed of conveyance, though it estops the grantor from alleging want of consideration, is only prima facie evidence of payment which may be rebutted,........” Phillips on Insurance, chap. 6, marg. page 515, and numerous authorities there cited.
    And again : ‘ ‘ An allegation of compliance with a condition is supported by proof that the underwriters waived it.” Phillips on Insurance, §12, marg. pp. 21, 22.
    This rule is also clearly expressed by Parsons, as follows :
    “ The general rule of law is, that a receipt for money is open to evidence, either to qualify it or controvert it altogether. It is true that, generally, no written contract is to be varied by oral evidence. But even in a deed for land, where the receipt for the consideration money is acknowledged under seal, the actual payment may be inquired into, and any question raised concerning it, which does not tend to impeach or invalidate the deed, or vary any of its provisions ; and the same rule must certainly be applied to j>olicies of insurance.” Parsons on Maritime Law, vol. 2, pp. 182, 183.
    No other commentary upon these established rules of law and correct pleading will be offered than that furnished by the defendants themselves in the testimony of their witness, L. A. Fourchy, which forms of itself a strong feature of this case. On being first sworn, he said :
    “In February and March last I was clerk in the Merchants’Mutual Insurance Company, ” and, on being shown the policy of insurance sued on, added, that he recognized his signature to the receipt, on the back thereof.
    When recalled by defendants, at a later stage of the trial, and again shown the policy of insurance, he testified “that premium was paid to me on the 1st of March,' between half-past ten and nine o’clock, by the plaintiff himself. When he paid the premium on tine 1st of March, he, the plaintiff, said nothing at all about a fire having occurred at his place.”
    “Idelivered the policy to him on that day, without being aware that the fire had occurred. Had I known that this fire had occurred, I would not have delivered ,him that policy, except with the consent of the company. I had no authority to make a waiver of the condition of the policy; I did not know at the time I received that premium that the said property was destroyed by fire.”
    “ Plaintiff had applied to the company, through me, to have that property insured; the application was written by the secretary, I think.”
    ‘1 Plaintiff applied at the defendants’ office before the 1st of March. Plaintiff’s name is down on the books of the company as being insured for the amount of the policy.”
    “ The policy is dated 25th February, because the application was made on that day. I do not recollect that I was much engaged that day. I told the plaintiff nothing about the premium.”
    “ I made the insurance without speaking to Pino; Ido not recollect having said to him to call on the following Monday.”
    When asked what occurred between Pino and himself on that occasion, this witness answered : “ I do not recollect; I saw plaintiff in the office. The blanks in the application of plaintiff were filled in the handwriting of the secretary, and I do not know what occurred between him and plaintiff. I know nothing at all of what took place between the plaintiff and myself.”
    “I might have had a conference with the secretary in relation to plaintiff’s application; I cannot recollect whether I did so.”
    ‘ ‘ At the second interview, when I gave him the policy, he paid me the money and I handed him the policy. He said nothing, and I said nothing. I knew that he wanted his policy when he came.”
    “ I do not talk to parties; I have not always time to talk. At the first interview he must have told me he wanted to be insured; but I cannot recollect; these things escape my memory...........”
    This witness made his appearance once more for the defendants, but with what amount of benefit to their case, the Court will determine. He now swears :
    “When I said defendant’s (meaning plaintiff’s) name is down on our books for the amount of this policy, I meant that that policy is a copy from our records. Of each policy we give out, we keep a duplicate in our records.”
    “We are not generally paid the premium at the time we deliver the policy.........”
    There can be no doubt, from these authorities and this testimony, that the contract between the plaintiff and defendants was complete before the fire of the first of March. The defendant could have brought suit to recover the premium under it; and, if this could be done, it is certainly competent for the plaintiff to recover compensation for the loss he has suffered. The contract of insurance is one of indemnity; it is consensual and commutative. After the secretary has written out the application, and the assured, as such, has been put down on their books, the company cannot be permitted to decline to perform faithfully their part under the contract, long since perfected.
    These principles of the law of insurance have received a recent exposition in the case of Goilv. The National Protection Insurance Go., decided in the Supreme Court of New York, the facts of which aro most similar to those of the case before the Court.
    The action was on a policy of insurance against fire, issued to the plaintiff and his brother, Joseph A. Goit, and assigned by Joseph A. to tlio plaintiff, after the loss. The premium was not paid until after the loss ; the agent of the defendants telling the assured that it was immaterial; that he did not care to receive it until he made his returns, and he would call for it. The premium was paid to, and accepted by, the agent the day after the fire. The defendants, under a provision authorizing it, had directed their agent to cancel the policy; but he had not done so, only mentioning to the assured that he would procure another insurance for th'em, and that, until he did so, the policy might continue in force. Annexed to the policy was a condition, like the condition in the policy in the case at bar, to wit: that “no insurance should bo binding until the actual payment of the premium.” In deciding the case, after observing that the premium was not actually paid at the time of the loss, and after observing that this fact was alleged as a reason by the defense for assuming that the policy had not attached, the Court said :

      “ It is a well-settled maxim that a party may waive the benofit of any condition or provision made in his behalf, no matter in what manner it may have been made. (Brown’s Legal Maxims, 547.) It extends to all provisions, even constitutional and statutory, as well as conventional. The law will not compel a man to insist upon any benefit or advantage secured to him individually. Hence, it was the privilege of the insurers in this case, if they elected so to do, to waive the condition making the actual payment of the premium a condition precedent to the binding efficiency of any insurance, as it was a provision inserted for their benefit, and in which they alone were interested. This waiver may be established by evidence of an express waiver, or by circumstances from which such waiver may be inferred ; and it may be by the managers of the company or by a duly authorized agent; and, as it was done by the latter in this case, it was obligatory upon the company.” (Barbour’s N. Y. Supreme Court Reports, vol. 25, p. 190.
    So also the Supreme Court of Maine, in dismissing the case of Loving v. Proctor, as one containing matter of fact, proper for the consideration of a jury, held : “ that if it was customary for the insured to be content that their policies should, when made out, remain in the office of the underwriter, and still be obligatory ; and if it should appear that such had been the case in the office of the defendant, and, at the same time, that the agent or insurance broker had all along declared that the note had been taken, and was upon the company; and if it should be believed that, in case there had been no loss, the premium would have been executed and recovered, a jury might conclude that it was intended that the policy so made out should constitute a binding contract.” 13 Shepley’s Maine Rep. 58.
    And in the case of Warren v. Ocean Ins. Go., where the insured gave no premium note, and took from the company no evidence of the contract, there was judgment, notwithstanding, in favor of the plaintiff. 4 Shepley’s Maine Rep. 449.
    In the case of Blanchard v. Waite, which was decided by the same Court, one of the plaintiffs (Loring) applied on the 5th of November, 1839, for insurance on the schooner Oxford, and, without signing the premium note, went away. He had, however, signe'd the proposition ■ book. Afterwards a policy was duly executed and recorded. Four or five days later, Loring called and was informed that the policy was ready. He was then asked to sign the premium note, but declined, saying he had no authority to sign a note for the owners. On the 6th of December, he was again requested to give the note, and again declined. On the 9th of December, the loss of the Oxford became known in Portland, and on the 11th of December—five weeks after the application—Loring tendered the note and called for the policy. But, notwithstanding these mitigating circumstances in favor of the insurers, thero was judgment for the plaintiff, and the Court said :
    “ It appears by the evidence that, in other cases, insurance had been effected with this company in a similar manner ; the applicant having signed the proposition book ; Smith (the president) would then say the insurance is complete, or the vessel is at the risk of the office, and the insured might call when it was convenient and take the policy.”
    “A contract of insurance is completed when there is an assent to the terms of it by the parties, on a valuable consideration. Neither the giving the premium note nor the reception of the policy by the insured, are prerequisites to its consummation.”
    And, again: “No copy has been furnished to us of what was signed by Loring, but we understand from what facts are submitted, that he made himself liable for the premium, so that it could have been recovered of him.”
    “We find then in the case, the terms of insurance reduced to writing, in a book kept by the insurers for that purpose, and signed by one of the insured for the whole, a policy made and recorded, and ready for delivering before the loss: Was the contract at that time completed ? Here was a union of minds upon the contract, and the insurers had legal power to enforce the payment of the premium against Loring. Blanchard v. Waite, Shepley’s Maine, Rep. vol. 15, 58.
    On the authority of Mr. Justice Washington, in Kohne v. Insurance Company of North America, in the Circuit Court of the United States for Pennsylvania, the doctrine regarding the acts necessary to the completo execution of their contracts of agreement to insure, by underwriters, by their having executed their policy, is carried still further.
    In that case the plaintiff’s agents, and that of the company, had settled the terms of insurance, but the policy was only filled up some hours after-wards, when the insurance company gave notice thereof to the plaintiff, informing him also that the vessel insured had been captured. Both parties knew nothing of the loss when the policy was executed. When the premium note was offered it was refused by the company, who also declined to deliver up the policy.
    The Court, nevertheless, charged the jury that the contract was perfected, and the plaintiff recovered. W. C. C. Rop. 93.
    Although the correctness of this ruling of Judge Washington was considered by Mr. Phillips as obscurecí with some doubt, that doubt has been since removed by the recent decision of the Supreme Court of the United States in the case of the Union Mutual Insurance Company v. Commercial Mutual Marine Insurance Company. The facts found there by the .Court, showed that the agent of the plaintiff went to- the office of the defendants on the 24th of December, and the president not being in, filled up a blank proposal in the general way. He returned the same day and .saw the president, who offered to insure at a given rate. The agent said , be would consult his principal, to -which the president agreed, and on .Monday 26th, receiving a reply accepting, saw the president, who told hjjn, that he (the president) assented to the terms, but said that no business was done that day, being celebrated for Christmas, and that the next day he would attend to it. The vessel burnt up that night. The proposal , was in the common form with “ binding,” and a blank for the president’s name. This blank had not been filled up by the president, and no premium was paid. Phillips Marg. p. 24.
    Judge Curtis, in delivering the opinion of the Court, said:
    “The fair inference is, that if the general authority of the president to contract for the corporation had been put in issue, it could have been shown by the most plenary proof that the presidents of insurance companies in the city of Boston are generally held out to the public by those companies as their agents, empowered to receive or assent, either orally or in writing, to proposals for insurance, and to bind their principals by such assent.”
    “ Nor. do we deem it essential to the existence of a binding contract to make insurance, that a premium note should have been actually signed and delivered. The promise of the plaintiffs to give a note for the premium was a sufficient consideration for the promise to make a policy. It is admitted that the usage is to deliver the note when the policy is handed to the assured. If the defendant had tendered the policy, we have no doubt an action for not delivering the premium note would have at once lain against the plaintiffs, and we think there was a mutual right on their part, after a tender of the note, to maintain an action for the non-delivery of the policy. In Tayloe v. The Mutual Fire Insurance Company, (9 How. 320), it was held that a bill in equity for the specific performance of a contract for a policy could be maintained. And it being admitted that in this case the defendants would be liable as for a total loss on the policy if issued in conformity with the contract, no further question remained to be tried, and it was proper to secure the payment of the money, which would have been payable on the policy, if it had been issued.” 19 Howard 323.
    It is to be observed that this case was carried on appeal from the Circuit Court for the District of Massachusetts, where it was contended that, by force of a State statute, insurance companies could only make valid policies by having them signed by the president and countersigned by the secretary, but the Court were of opinion that the law “ only directed the formal mode of signing policies, and had no application to agreements to make insurance.”
    Indeed, the latest writer of reputation available to us for consultation, Mr. Parsons, who is remarkable for his cautious judgment, and who has reviewed in an enlightened spirit all the cases, does not hesitate to affirm that ‘ ‘ there seems to be no reason why the general principle, both of the common and civil law, that the evidence of a contract need not be in writing, unless expressly required so to be, should not make a parol contract of business valid.” 2 Parsons on Maritime Law, vol. 1, page 19, note.
    But to discuss the subject longer in this place would involve digression, and it will therefore be pursued no further.
    It is true that the Supreme Court of Louisiana held in the case of Berlhoud v. Atlantic Marine and Fire Insurance Company, that the defendants were not liable where the premium had not been paid, but Judge Eustis, who was the organ of the Court, deemed it undeniable that the reciprocal assent of the two parties to the contract had not been expressed, and was careful to state that the secretary of the company distinctly informed the plaintiff that the policy would not be delivered until the premium was paid. 13 La. 542. It is evident, therefore, that the case was decided altogether on the facts before the Court, and is entirely inapplicable to the case at bar.
    But more than enough has been said to establish, conclusively, that the defendants in this case are liable to the plaintiff for the full amount claimed by him, whether their responsibility be considered as settled by the rule laid down in the case of Goü v. The National, Insurance Company, first referred to, or only as falling within the general principles, and conforming to the recognized tendency of the doctrine of the other authorities cited.
    It only remains now to examine the effort made by the .defendants to fix upon the plaintiff a breach of warranty. The answer of the defendants set up no such defense, and made no charge of fraud, but only pleaded the general issue, and afterwards set forth the fact that the plaintiff paid his premium after the fire, and without making mention of it.
    Formerly, under the plea of the general issue in policies of insurance, the defendants could produce evidence of almost every matter—such as illegality, misrepresentation, change of usage, deviation, breach of warranties, etc., etc., etc. But the new rules of pleading, relating to this subject, provide: “That in every species of assumpsit, all matters in confession and avoidance, including not only those by way of discharge, but those also which show the transaction to be void, or voidable in point of law, on the ground of fraud or otherwise, shall be specially pleaded. And by way of instance, again, as far as relates to policies of .insurance, the rule specifies, unseaworthiness, misrepresentation, concealment, and deviation, as amongst those matters which must be specially pleaded.” Arnould on Insurances, vol. 2, marg. pag. 1287. See also Kennedy v. N ÍT. Life Insurance Company, 10 An. 811; Matthews v. Gen. Mutual Ins. Co. of N. T., 9 An. 590; Kaihman v. Ins. Cos., 12 An. 38, 39; Flynn v. Mer. Ins. Go., 17 An. 135; and numerous cases there cited, showing that special defenses are necessary, and must be pleaded where it is sought to invalidate the contract of insurance. The Court is also referred to Michael v. Nashville Ins. Co., where the course pursued by the defendants was marked by inconsistency not dissimilar to that shown in this case, and upon which proper comment was made. 10 An. p. 738.
    The plaintiff here concludes his case. The determined opposition with which his claim has been met, and the learning and ability displayed by defendants’ counsel, have induced him to review at length the facts on which he relies; to reproduce many quotations from the authorities which sustain him, and to expose the ingenious devices to which the defense has been driven to avoid a just liability from which there can be no escape: at one time attempting to disprove the concurrent testimony of ove-witnesses of the fire, by the conjectures of persons who were not present at it; at another, to show by curious speculations and calculations, that the storeroom burned did not contain the goods which three credible witnesses saw there the night before ; at another, that the contract of insurance never attached, because the premium was not paid according to one of the conditions 'of the policy, or that there was no contract; and, finally, at the same time, that the plaintiff concealed essential particulars which, if known, might have prevented defendants from insuring, or that there was a contract which is voidable, owing to the fact of such concealment.

      Brief of L. Pierce and J. W. Gurley, for defendants and appellants.
    —The Court below admits, that if the written contract is to govern, the case is against the plaintiff upon his own authorities; and it then proceeds to relieve him from his embarrassment, by repudiating the document which he had offered as evidence of his contract, and substitutes a verbal agreement, which is nowhere to be found but in the silence of defendants’ clerk.
    “It is affirmatively shown,” says the Court, “by one of their own witnesses, that defendants took the risk on the plaintiff’s property without condition.” And the Court finds this affirmative proof in the testimony, which it thus quotes: “Mr. Foucher, their clerk, swears that he was the person who effected the insurance; that nothing was said at the time; that he made the insurance without talking to Pino, and he very plausibly accounts for this total absence of any conversation having taken place between him and the plaintiff. He says: “I don’t talk to partios; I have not always time to talk.” “It is true,” proceeds the Court, “tlio policy sued on contains the clause, that no insurance shall be binding until the actual payment of the premium; but it strikes me that this policy cannot be the true interpretation of what were the conditions under which the parties contracted, in the presence of Mr. Foucher’s testimony above referred to; besides, it being shown by this same witness, Foucher, that the policy was not delivered to Pino until after the payment of the premium; and, consequently, after he had experienced the loss, the presumption, in the absence of proof to the contrary is, that Pino had no knowledge of the contents of the policy, and could not have assented to the conditions therein stipulated.”
    Yet this is the contract upon which Pino, after having retained it in his possession from the 1st to the 28th of March, institutes his suit; and which, without complaint of its terms or conditions, he simply prays, in his petition, the aid of the Court to enforce. Under this state of facts, can it be possible “that the presumption, in the absence of proof to the contrary is, that Pino had no knowledge of the contents of the policy, and could not have assented to the conditions therein stipulated!” We oppose, with confidence, the statements of his petition to the presumptions of the Court. Disregarding the policy, the Court could only find evidence of the contract in the statement of Eoucher, “that he was the person who effected the insurance. ” Beside this, there is nought but his silence. How has it, then, determined the amount of the indemnity, the character of the property, its location, the rate of premium, or the term of the policy ? Its judgment could not have been shaped without resort to the written contract. Thus arbitrarily adopting or repudiating its stipulations and conditions, the Court in effect declares, that inasmuch as no conversation took place between Pino and tho defendants’ clerk, when the insurance was effected, it will not receive the written contract as the full and true exposition of the intention of the parties; it will give effect to those clauses which impose liabality upon the defendants, and will consider as not written, or assented to, those which make that liability conditional.
    In a case not dissimilar in principle, (Refel v. Nashville Co., 7 A. 245), Slidell, J., says: “ The conditions attached to a policy form part of the contract. This has been long settled. ”
    Accepting this as correct law, what is the legal consequence of the nonpayment of the premium? The District Judge, after a careful examination of all the authorities, thus states his conclusions in regard to it: “It cannot be questioned, that when a risk is taken with the understanding and agreement that the insurance shall not be binding upon tho underwriters until the actual payment of the premium, such an agreement suspends the consummation of the contract, and the payment of tho premium is a condition precedent to the contract becoming valid as such.” This is in strict accord with all the authorities, and determines the case in favor of tho defendants.
    In BerthoudY. In. Go., 13 L. 543, to which the plaintiff in his brief has referred, and vainly attempted to explain away—Eustis, J., says: “ Supposing that the defendants were bound by the act of the secretary, in marking on the application the rate of insurance, it by no means follows that by that circumstance the contract of insurance was complete. Consent on their part was not given to the contract itself. The consent was given that they would insure at the rate marked, provided the premium was paid. * * * * * Neither the policy nor memorandum were delivered by the defendants, and we can see nothing in what passed between the parties but a proposition which was accepted under a condition which was never complied with by the party, who now wishes to enforce the contract.” The case at bar is stronger, in this: That the condition is found in, and forms part of the very contract which the plaintiff unreservedly asks the Court to enforce; and the date of the receipt of premium endorsed thereon furnishes the evidence of his non-compliance with the condition, until after the subject-matter of that contract had ceased to exist. See, also, TayloeY. Merchants’ Go., 9 How. U. S. R. 390; Beadle v. Chenango Mat. Ins. Go., 3 Hill, 161; Angelí on Eire and Life Ins., p. 5, § 7, and p. 413, § 399.
    If the Court will bear in mind the distinction drawn by Eustis, J., in the decision just quoted, that the defendants never consented to the contract itself, but merely consented to insure at the rate marked, provided the premium was paid, and that the policy in this case contains no acknowledgment of the receipt of the premium, it will at once perceivo the inaisplicability of the authorities quoted by the plaintiff.
    But it has been argued that the defendants waived this condition by the delivery of the policy. A brief examination, of the facts will show that there is no foundation for such an inference. The witnesses all agree that the fire occurred at four o’clock on the morning of the first of March. Some five hours later in the day, and while the defendants were still ignorant that a fire had taken place, Pino, himself, called at their office, and, without informing them of that event, asked for and obtained the policy, and paid the premium. The receipt endorsed on the policy shows that the premium was paid on that day, and the testimony of Eoucher fixes the hour. He says that he delivered the policy without being aware that a fire had occurred, and that had he known it he would not have delivered it without the consent of the company. And further, that he had no authority to make a waiver of the condition. His testimony, as to these facts, is not contradicted.
    The plaintiff objected to his testifying, as to the hour when the premium was paid, and urged for ground of exception, that “the defendant is estopped by their receipt from alleging that the policy was void, because the receipt or acknowledgment was untrue.” Certainly, nothing was further from the intention of the defendants, for it is in the truth of that receipt that they find the strongest cause of nullity. Its date shows that the premium was paid on the very day the property was destroyed. The testimony of Eoucher, determining the hour, cannot be said to contradict it. In the absence of this proof, introduced for the purpose of sustaining an express allegation in the answer, the Court would judicially notice the fact, that the incorporated monied institutions of the city are not opened for the transaction of business at four in the morning, the hour of the fire.
    Another bill of exceptions was taken to that portion of his testimony, in which he states that had he known of the fire he would not have accepted the premium nor delivered the policy, without the consent of the company. The plaintiff has endeavored to show a waiver by the defendants of the condition, in regard to the pre-payment of the premium, and as if doubtful of his right under his pleadings to do so, he quotes from Bhillips: “An allegation of compliance with a condition is supported by proof that the underwriters waived it. ” If this be a legitimate issue in the case, it would be a hard rule which would allow the plaintiff to support it by proof, and exclude rebutting evidence on part of the defendants.
    Surely it is unnecessary to cite authorities to show that a policy obtained under these circumstances is void. Angelí, in his admirable work on Eire and Life Insurance, p. 71§ 38, says: “ Of course, it would be an objection to the validity of a policy founded upon a previous agreement, that the loss at the time was known to the assured only; but no case has determined that an underwriter, who effects a policy with a full knowledge that a loss has actually happened, may not be bound by it; on the contrary, it has been otherwise determined. ” And again, on p. 413, f 399 : “The risk assumed by the underwriter on the one side, and the premium paid by the assured as the price of that risk are, in the language of Marshall, correlatives, whose mutual operation constitutes the essence of the contract of insurance.”
    A contract without cause, or subject-matter to rest upon, is null. O. C, 1887, 1891, 1892.
    With the same view of establishing a waiver of the condition, the plaintiff has endeavored to show that credit was given him for the premium; and Eouoher is the witness relied upon for the purpose. On cross-examination, he states “ plaintiff’s name is down on the books of the company as being insured for the amount of the policy.” But, subsequently, he explained himself, thus: “When I said plaintiff’s name is down on our books for the amount of this policy, I meant to say that that policy is a copy from our records. Of each polioy we give out, we keep a duplicate in our records.” “No credit was given by the company to plaintiff for this premium;” andón cross-examination: “ Plaintiff did not apply to me for credit.” How can it bo urged in the face of this testimony—and there is none other in relation to it—that credit was given to the plaintiff for the amount of his premium. He does not allege it in his petition; he has failed to make proof of the fact, and his conduct in not demanding possessidh of the policy, until it suited his interest to tender the premium, is conclusive of his own understanding of the contract.
    Eor the like purpose an attempt has been made to show that the defen. dants are not generally paid the premium at the time they deliver the policy. As the proof looked to a general custom and not to the particular contract sued upon, it is difficult to perceive its bearing. In this case, the policy was not delivered until the payment of the premium. The plaintiff interrogated Mr. Eoucher, to prove such a usage; and also', adduced in evidence six receipts, given by the defendants to L. Castera, for premiums paid by him in the years 1854-5-6-7-8, at periods subsequent in date to his policies. To this testimony, and to these receipts, the defendant objected-on the ground that they tended to prove a usage, contrary to the express terms and conditions of -the written contract sued upon ; and that the stipulations and conditions thereof could not legally be contradicted or varied by proof of the existence of any such custom or usage. To these we ask the attention of the Court.
    In the case of the schooner Reeside, 2 Sum. Cir. Ct. R. 567, Mr. Justice Story, after stating that the true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intention of the parties, etc., proceeds : “But I apprehend that it never can be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fortiori not in order to contradict them. An express contract of the parties .is always admissible, to supersede or vary, or control a usage or custom ; for the latter may always be waived at the will of the parties. But a written and express contract cannot bo controlled or varied, or contradicted by a usage or custom ; for that would not only be to admit parol evidence to control, vary or contradict written contracts, but it would be -to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate declarations of the parties. ”

      Id this, the plaintiff himself, in his bill of exceptions, thus expresses his concurrence : “That by law it is not permissable to prove anything out of the contents of the policy.” And again, “that the insurance company had no right to vary or alter by parol the terms of a policy executed by them. Nor the right to contradict the stipulations of their own policy,” etc. Under these authorities, we think the defendants have shown no misapprehension of correct principles of law, in opposing the introduction of such evidence. Wo submit that the bill is well taken, and that the evidence should be stricken out. ' Rut should the court be of opinion that it was properly admitted, then we say there is nothing in the testimony of Foucher, nor in the six receipts of Mr. Oastera, to show the character of the policies to which either had reference ; and in the absence of proof, the court will presume that the policies were issued in the one case, and the credits given in the other, in conformity to some agreement between the parties, and not in violation of one. It is impossible,' successfully, to argue from such proof, in the face of the positive and uncontradicted statements of Foucher to the contrary, the express condition in the policy, and the fact that it was not delivered until the actual payment of the premium, that the defendants consented, in this instance, to assume the risk before the receipt of the’consideration.
    The errors of this case, and those which, have given rise to its only difficulties, are : 1. That the policy itself contains an acknowledgment of the receipt of the premium. 2. That the conditions therein, that the insurance should not be considered as binding “ until the actual payment of the premium,” has been waived by the defendants. 3. That the contract of insurance was consummated by the consent of the defendants before the destruction of the property.
    The correctness of all three are most positively denied by the defendants, and they solicit to their examination the careful attention of the court. As to the first, the joolicy itself reiterates the consideration of the contract, but makes no acknowledgment of its receipt. The only acknowledgment of payment is that which was endorsed upon it after the loss of the property, as is shown by the date it hears. As to the 2d : The burden of proving a waiver rested upon the plaintiff. He has failed to show it. The record contains affirmative proof that there was none. 'Foucher positively states that no credit was asked or given for the premium ; and Pino, himself, some three hours after the fire, told Mr. Adams “ that he was not insured at all.” If there had existed an agreement to waive that condition of the contract, Pino must have been a party to it; and, consequently, would have known that he was insured ; and when he afterwards went to the office of the defendants, and tendered the premium and demanded his policy, he would not have concealed from them the facts of the loss.
    As to the 3d. This error arises from confounding the agreement to insure on conditions, with the contract of insurance itself. They are entirely distinct. The first received the assent of the parties on the 25th February, 1865 ; and it then became the right of Pino, upon tendering- the premium, to demand the execution and delivery of the policy ; and of the defendants, upon tendering the policy, to demand, and if necessary, to sue for the premium. In other words, it was the right of either party, on complying with the conditions, to compel the other to consummate the contract of insurance which they had agreed to make. These were the correlative rights of the parties ; they had no others. At any time before the destruction of the property, Pino might have enforced his. At any time before the expiration of the agreed term of one year, the defendants might have enforced theirs. As Pino could not compel the defendants to insure against loss, that which was already lost, so the defendants could not compel him to pay them a risk for a term already elapsed. Hence, it results that the payment of the premium by Pino, after the loss of his property of which fact the insurers were ignorant, cannot avail him. His able counsel have argued, that as the defendants could have brought suit to recover the premium, it is certainly competent for him to recover compensation for his loss. The fallacy of this argument flows from not properly distinguishing between the agreement to insure on conditions, and the contract of insurance itself. If the agreement to insure had been without condition the argument would hold. “In commercial towns, actions on more agreements to insuse * * * * are not uncommon. And they are always sustained, whenever it appears that the terms of the agreement have been fully settled by the concurrent assent of the parties, so that nothing remains to be done but to deliver the policy. The contract is executory in the first instance, and completed when the policy is drawn up.” Angelí on Fire and Life Ins. Co., page 68, <S 33.
    But the court will bear in mind that this is a suit upon a policy, and not upon an agreement to insure ; and by it alone the rights of the parties are to be tested. “ The policy,” says Duer, vol. 1, p. 71. $ 16, “from the time of its execution, with the exception of the cases to be hereafter stated, in which extrinsic proof may be received, constitutes the sole evidence of the agreement of the parties; nor, subject to these exceptions, can any previous letters or communications between them, nor even the written application or agreement be used to vary or control its interpretation.”
    The authorities relied upon by plaintiff do not sustain him. In Goit vs. National Pro. Ins. Go. “The premium was not paid until after the loss, the agent of the defendants tolling the assured that it was immaterial, that he did not care to receive it until he made his returns, and he would call for it.” It was correctly held that this amounted to a waiver, and was obligatory on the company.
    In Poring vs. Proctor, 13 Shepley 26, the only question considered was one of jurisdiction. The court declared that inasmuch as questions of fact as well as law were involved, they were without jurisdiction under the statute, and accordingly dismissed the suit without deciding any of the questions submitted.
    In Blandhard v. Waite, 15 Shepley, 51, the contract was not a conditional one; it was absolute in its terms, and acknowledged the payment of the consideration. There it was in substance decided, that the valuable consideration was the obligation assumed by Loring to furnish a premium note, signed by himself and his co-proprietors. The company resisted payment on the ground that there was no consideration, because Loring had no authority to bind his co-owners. The Court was of opinion that he had, and, consequently, that the contract was in itself complete before the loss. There was an article in the constitution of the company (not in the policy), directory to the secretary, to require payment for all policies of a less sum than twenty dollars, and. for all premiums for risks over that sum the “secretary shall be at liberty to take a ■ note,” etc. The giving of the note was delayed from time to time, and the delay assented to by the company. Besides, “it appears (say the Court) by the evidence, that in other cases insurance had been effected with this company in a similar manner; the applicant having signed the proposition book, Smith (the president) would then say the insurance is complete, or the vessel is at the risk of the office, and the insured might call when convenient and take the policy.”
    In Kohne v. Insurance Co. of North America, 1 Wash. C. C. R. 93, the first objection made to the recovery was, “that the agreement for insurance was inchoate; and the insurance company having heard of the loss before the policy was delivered, had a right to retract.” To this the plaintiff answered, “that the contract was complete, and the policy executed before notice of the loss.” Washington, J., charged the jury: “The first objection to this action was not much relied on by the defendant’s counsel, and there is certainly nothing in it. There is no charge of unfairness on the part of the agent of the plaintiff, nor is it pretended that he knew of the loss on the 12th, when he waited on the president of the insurance company. * * * * The contract, therefore, was not inchoate, but perfected before notice of the capture by either of the parties.” In the case at bar, plaintiff knew of the loss when he sought to perfect his contract by the payment of the premium, and the defendants were ignorant of it.
    It is said that Mr. Phillips considered the correctness of the judge’s ruling in the case as doubtful. The judge himself was not satisfied with the verdict, and subsequently expressed his satisfaction that a new trial had been granted. On the second trial judgment was given in favor of defendants. 1 Wash. O. O. R. 158.
    In the next and last case relied on by the plaintiff, that of the Union Mutual Ins. Co. v. Commercial Mutual Ins. Co., 19 How. U. S. R. 322, the agreement to insure was without condition and fully assented to. And it Was upon this agreement, as amounting to a present insurance, that suit was instituted. The only question in it, that can possibly be construed as having the remotest bearing upon the case before the Court, was : Whether, under the general principles of the common law, there was any consideration for the contract to rest upon ? It was held, that promise to give a note was a sufficient consideration ; that the assent of the parties was full and unconditional, and that there remained nothing to be done but to issue the policy, as evidence of that agreement. In the course of their argument, the Court sustained the correctness of the very point contended for by these defendants. They say :
    “Whether a risk be commenced when a contract for insurance is made, or only when the policy issues ”—(or when the premium is paid ?)—.“must depend on the terms of the contract. Where, as in the present case, there is an express contract to take the risk from a past day, there is no room or any understanding that it is not to commence until a future day. Such an understanding would be directly repugnant to the express terms of the contract.’’
    In the case at bar, the contract of which the plaintiff seeks the enforcement contains the express stipulation, that it shall not be binding until the actual payment of the premium.
    There are some other authorities referred to by plaintiff, which we will briefly review : The first is from Marshall, to the effect that when insurers (in the policy) “ confess themselves paid” the premium—its payment or non-payment has no effect on the insurance'—that, having subscribed the policy and given credit for the premium, they are bound by it. This is undoubtedly correct; but in our case no credit was given, and the payment was made when the plaintiff alone knew that he had no property to insure ; that he was fastening upon the defendants a dead loss, instead of a risk. Forgetting, for the time, the maxim which he has since ventured to invoke—that the contract of insurance is one of strictest good faith—he aimed, at the expense of a small premium, to secure full indemnity for a loss already incurred.
    The next is from Phillips, in which he states that, in the usual form of policy, the insurers acknowledge payment of the premium; that this imports a settlement by cash or premium note, and is (he thinks) equivalent to saying that the contract is not in force until such payment has been made ; but he adds : “ the agreement of the parties may control the rule just stated.” We have controlled it by an express agreement inserted in the policy, that it shall not be binding until the actual payment of the premium ; and this clearly imports that no settlement was made.
    The next is from Arnould, as to the actual course of London business. With this we have no concern.
    The next is from Parsons : that, if the policy “ states the reception of the premium,” it binds the insurers, though it be not paid, nor the policy delivered, provided there be “evidence otherwise of a completion of the contract. And if the policy provides that there shall be no insurance until the actual payment of the premium, as this provision is inserted for the benefit of the insurer, it may be waived by him or his agent.” We admit the correctness of all this; but the defendants have not waived the condition, nor does their policy admit the reception of the premium. ' ’
    We come now to the consideration of another point, upon which the defendants confidently rely : that the plaintiff has failed to show a compliance with the express warranty of his contract; that the goods insured were “ contained in a two-story house, built of bricks and covered with slates. ” The petition states that the whole of the lost property was ‘1 contained in a two-story house, Gasquet street, No. 17, fully described in said policy;” and the above description is taken from it. The answer of the defendants was a general denial; and of this the District Judge says :
    “When, in a case of this kind, the plaintiff is met by a plea to the general issue, he is not bound to prove, as condition precedent to his right of recovery, that he has complied with all his warranties, either stipulated or implied.” See Kathman v. General Mutual Ins. Go., 12 An. 87.
    We contend that this is not the law. The warranty here is an express one, appearing upon the face of the contract; and, in the words of Mr. Phillips (vol. 2, § 2122), “it must be complied with, and must appear to the Court to be complied with, before the plaintiff has a right to recover. ” Angelí, on Eire and Life Insurance (p. 171, §142), also says : “A warranty in a policy of insurance, in whatever form created, is a condition or contingency, and unless performed there is no contract. It is styled a condition precedent, which means that it is perfectly immaterial for what purpose the warranty was introduced, and that no contract exists unless the warranty be literally complied with.” And again (p. 169, § 140): “Express warranties are stipulations inserted in the policy, on the literal truth or fulfillment of which the validity of the entire contract depends. ” And Arnould (vol. 2, marg. p. 1326, § 468): “ All express warranties being conditions precedent lo the policy’s attaching, the compliance with them is part of the plaintiff’s title, and must accordingly be proved by him in the first instance,” etc. And Chancellor Kent, in his Commentaries (vol. 3, marg. p. 288): “ Every warranty is part of the contract. * * * It differs from a representation in this respect, that it is in the nature of a condition precedent, and requires a strict and literal performance. * * A breach of it avoids the contract ab initio. Every condition precedent requires a strict performance to entitle a party to his right of action.” And Ellis on Eire and Life Insurance (marg. p. 29): “A warranty being in the nature of a condition precedent, it is quite immaterial for what purpose or with what view it is made ; but, being once inserted in the policy, it becomes a binding condition on the assured ; and unless he can show that it has been strictly fulfilled, he can derive no benefit from his policy.”
    It is manifest, under these authorities, that, in the absence of an answer, a judgment by default (which, under our practice, is a tacit joining of issue, and equivalent to a general denial) could not have been confirmed, unless the plaintiff had made proof of strict compliance with his warranty; surely the rule cannot be varied by an expressed plea of the same character. The authority cited by the District Judge (Kathman v. Insurance Co. 12 An. 35), as sustaining his view of the law, is the same that was relied upon by the defendants as being most pointedly opposed to it. Its language is too plain to be misunderstood or misinterpreted. In that case, “the plaintiffs, in their petition, allege the seaworthiness of the schooner, and their interest in the merchandise shipped ;” and aver that the goods, and the freight money paid in advance, were insured in the defendants’ company. “The defendants simply pleaded the general issue.” The principal contest was, as to whether, under these pleadings, the interest (and this is no warranty) of the plaintiff in the object of the policy could be questioned. The court by a majority of one, Spofford and Lea dissenting, thought that it could not; but as to the warranties, viz: Seaworthiness and deviation, they were unanimously of the opinion that they were legitimate subjects of investigation. They say : “As regards the questions of seaworthiness and deviation, these are open so far as the testimony which has been offered by the plaintiff tends to establish the. one or the other.” And they then proceed to comment on the evidence in relation to them. It will be observed that the warranties there were implied ones, while that in the case at bar is an express one, appearing upon the face of the policy. This decision accords with the authorities above quoted, and is undoubtedly the true rule. Roscoe, in his Treatise on Evidence, ed. of 1832, id. 188, also states it, that under the general issue, defendants may show that plaintiffs are not entitled to recover, on account of non-compliance with a warranty. The authorities cited in plaintiffs’ brief are not pertinent to the enquiry. The “new rules of pleading ” are those which were adopted by the Court of the King’s Bench in England, 1834, for the guidance of the English Courts, and havo neither force nor effect here. The absurdity of applying them to our practice is apparent, when we observe that under the very rule which the counsel quotes, the plea of the general issue “ operates as a denial of the fact of the subscription of the alleged policy by the defendant. ” Arnould 2d, page 1286, marg.
    In Kennedy v. N. T. Life Ins. Go., 10 A. 811, there was no question of warranty. The enquiry there was, whether the interest of the plaintiff in the policy could be put at issue without a special plea ; and on this the court differed.
    The case of Matthews v. Gen. Mut. Ins. Go., 9 A. 590, involved no question of warranty. The issue there was, whether the allegations of the answer were sufficiently explicit to admit proof of fraud. Neither was any such question raised in the case of Michael v. Nashville Ins. Co., 10 A. 738. Their first ground of defence was the non-payment of the premium ; and, subsequently, in a supplemental answer, the defendants pleaded misrepresentation and fraudulent concealment. Of these the court said: “The first plea, which was in substance that there was no contract, is inconsistent with the second, which alleges the contract to be void for fraudulent concealment.” 'We find no fault in this decision; but we do not perceive its bearing upon the matter at issue. Time and again was it urged that evidence offered by defendants tended to prove fraud, or fraudulent concealment, and its admission opposed on the ground that no such charge was made in the answer. This objection comes up in the record in plaintiff’s bill of exceptions, in these words: “2. That there is no allegation of fraudulent concealment set up in the answer of the defendants, and that such an allegation is necessary to enable defendants to prove fraudulent concealment.” The admission of the diagram of the buildings was resisted also, on the ground that it was substantially for the purpose of establishing fraud ; “ and that fraud had not been set up by the defendants in their answer.” And again, the plaintiff, in his brief, interprets the answer as making “no charge of fraud. ”
    No attempt having been made by the plaintiff to prove a compliance with the express warranty of his contract, the defendants offered to show, affirmatively, a non-compliance, and absolute breach of it, in this : that the goods named in the policy were not, at the time of their alleged loss, contained in a “two story house, built of bricks and covered with slates ;” but were in a one-story wooden store-room, not covered with slates. To this- evidence the plaintiff objected on the ground that it was inadmissible under the pleadings; the court sustained him, and the defendants excepted. The quick objection to the proof is in itself convincing evidence of breach of the condition ; but the record furnishes other evidence, and it comes from the plaintiff’s own witness. Mrs. Natribsays: “ These goods were in the pantry, between the kitchen and the house, immediately adjoining the house. “The ceiling of the pantry was not burned down ; thinks it is covered with zinc.” The defendants gave in evidence a diagram' of the premises, to which the plaintiff also excepted, asserting therein “ that-the best and only admissible evidence under defendants’ pleadings, of said premises, is contained in the description of the same in the policy of insurance executed by defendants.” Or as it might be stated in other words, the contract which imposed the condition is full proof of its performance. We admit this is a convenience to the plaintiff, but cannot concede it a law to the defendants.
    The diagram was admitted. On examining it, the court will see that the pantry designated by letter A, is, as the plaintiff’s witness described it, “ between tho kitchen and the house, immediately adjoining the house.” It is clear, then, that the goods were not in the building designated on the diagram as the ‘ ‘ two-story brick-slated house. ” Defendants were not permitted to prove of what material the kitchen and pantry were built, nor with what covered. The latter, Mrs. Natrib thinks, was roofed with zinc. The floor of tho pantry, we are.told by the plaintiff’s brother, “was about the height of a stex> from the ground.” John Adams, in speaking of it, says : “ It is shed built. I mean that the roof is an inclined plane, j ust on one side. ” It is in proof that the shelves extended from the floor to the roof, as the diagram which represents them indicates, in the conformity of the upper end, to the slant of the shed. The height from the ground to the roof, as determined by tho aggregate sjjace between the shelving, and the statement of Younnes that the space between the top shelf and the roof is three or four feet, is at the most twelve feet and two inches, showing clearly that it was not a two-story building, and thus establishing the fact of a breach of the express warranty. Under the authority of the decision in the case of Kathman, and in its language, this question was certainly “ ojien so far as the testimony which has been offered by the plaintiff tends to establish the one or the other.” The law imposed upon the plaintiff the burden of proving a strict and literal compliance. The record furnishes no proof, but of its breach.
   TaiiXapbebo, J.

The plaintiff alleges that defendants insured for him against loss by Are to the extent of six thousand dollars, a stock of wines, liquors, etc., and his household furniture, all of which were stored in a house on Gasquet street; that after this contract of insurance a fire-occurred in tho house containing the goods insured, by which he suffered loss and damage to the amount of §2,086 12; that he established this loss by the means and within the time he was required by the policy of insurance, but that defendants refuse to pay the said loss which they insured against. He prayed judgment for the specified sum, with legal interest from the time the same became due.

The defendants, in their answer, plead the general issue. They deny that they are bound to the plaintiff according to the conditions of the policy, and aver that plaintiff, without notice to them, paid the premium after the occurrence of the fire.

The plaintiff had judgment in his favor in the Court below, and the defendants have appealed.

It appears that the plaintiff applied for the insurance on the 25th of February, and that the fire occurred about one o’clock on the morning of the first of March following; that plaintiff went in the course of the same day (to the office of the'insurance company, and that without saying anything about the fire, of which defendants were ignorant, paid the premium, and got the policy of insurance.

There are only two questions of importance in this case, and they are embodied in two bills of exceptions, taken by defendants to the admission of testimony. These we will consider in their order:

1. The plaintiff declares upon the policy. The policy contains this condition: “No insurance, original or continued, shall, be considered as binding until the actual payment of the premium.” The plaintiff offered to prove by a clerk in ihe insurance office that the insurance company are not generally paid the premium at the time the policy is delivered. The defendants objected to the evidence on the ground “ that it tended to prove a usage contrary to the express terms and conditions of the written contract sued on; and that the stipulations and conditions thereof cannot legally be contradicted or varied by proof of the existence of any such custom or usage.” It may be here noted that plaintiff also offered six’different receipts, of various dates, given by the insurance company, showing the payment of premiums to them after the lapse of a month or more, from the time at which the insurance commenced to run. The introduction of these receipts were objected to on the same ground.

The proof of the rule or practice of the insurance company, in this particular, does not vary or contradict the written contract, and wo think it was properly admitted. The condition was one which defendants had the right to insist upon, but being a stipulation in their own interest they had a right to waive it. That it was the general usage of the company not to require payment at the time of delivery, the policies might properly be shown to establish only the waiver in most cases of the express condition.

2. The defendants offered to prove a broach of warranty on the part of the plaintiff. That he represented the building ho proposed to insure ns a two-story brick house, covered with slate, when in fact the house was constructed of wood. The introduction of this testimony was objected to on the ground that the defendants’ answer contained only a general denial, and that fraud was not alleged. The objection was sustained by the Court, and the defendants reserved their bill of exceptions.

We think the ruling of the Court correct. Several decisions of this Court have recognized the rule in cases of this kind, that all matters which show the transaction to be void or voidable in point 'of law on the ground of fraud, or otherwise, shall bo pleaded specially. 9 An. 590. 10 An. 811, and 12 An. 38. 17 An., Flinn v. Merchants’ Mutual Insurance Company.

The prevailing rule seems-to be, in regard to policies of insurance, that misrepresentation, concealment, etc., must bo specially pleaded. Arnould on Insurance, vol. 2, marginal, page 1287.

It is in proof that several days before the occurrence of the fire, the plaintiff made application at tlie office of the defendants for insurance; that the application was filled out by the secretary; that the policy was made out in duplicate, and the plaintiff’s name entered on the books as being insured. It is not shown that the plaintiff was required at that time to pay the premium, or that he was informed that the insurance company would not be bound until the money was paid. The proposition to. be insured was accepted; a policy made out, and a duplicate kept in the records of the company. The contract was complete, and without any doubt so considered by both parties. No intimation whatever seems to have been given to the plaintiff, that he would form an exception to the company’s general usage, to waive a strict compliance with the stipulation in the policy requiring payment of the premium as a condition precedent to its binding force upon the company. There can be no doubt that the insurance company could have compelled payment of the premium in an action against the plaintiff

We think it clear that the contract was complete on the 25th of February, the date of the policy; and that the delay of the plaintiff until the 1st of March, to pay the premium, and that after the fire had occurred, had no effect upon the obligation of the contract.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

Rehearing refused.