Lyon, J.

If the testimony of the local agent of the defendant association, through whom the insurance was obtained, is competent, it proves conclusively that Carl Hanf was over fifty years of age when the certilicate of insurance in suit was applied for and issued, to the knowledge of both him and the agent, and that at the solicitation of Hanf the agent conspired with him to misrepresent his age to the association in order to obtain the insurance; also that both knew the association would not issue the certificate if informed of the true age of the applicant. The truth of the last statement is proved by the fact that Hanf made an earlier application for insurance to the association, through the same agent, in which it was stated that he was born June 29,1830, and was fifty years of age, and the application was rejected by the association for tho sole reason that he was over the prescribed age. .

The learned counsel for plaintiffs submitted an elaborate and ingenious argument to show that, under sec. 4069, R. S., the agent was not a competent witness to prove the statements of Hanf. That section only excludes the testimony of a party to the action, or the person under whom he derives his title to or interest in the subject of the action, of transactions and communications had by him per*453sonally with a deceased or insane person through whom the opposite party claims or defends. It does not exclude the testimony of the agent of the party or person whose testimony is thus excluded. At the common law the testimony of a party to the action was absolutely excluded, but the agent of such party was a competent witness to prove the whole cause of action or the defense, although the opposite party derived his interest in the subject matter of the controversy through a deceased person. Sec. 4069 does not exclude testimony which was admissible at the common law. Ve find no adjudication which sustains the contention of counsel, and it is clearly, unsound in principle.

It is further contended that in the present case the agent effectually waived the provision of the by-law of the association excluding applications for insurance by persons fifty years old and upwards, and that the association is bound by such waiver. It is claimed that Morrison v. Wis. O. F. M. L. Ins. Co. 59 Wis. 162, sustains this proposition. In that case a fraudulent misrepresentation of his age was made by the insured. After the insurance company was chargeable with notice of the fraud, it continued to make assessments upon the insured, from time to time, which he paid. This was held a waiver of the right to declare the insurance forfeited. In this case the first knowledge the defendant association had of the fraud was when it received proofs of the death of Iianf, signed and sworn to by.each of the plaintiffs, in which it is stated positively that Iianf ■was born June 30, 1827, and hence was over fifty-three years old when the certificate of insurance was issued to him. The association thereupon immediately repudiated liability upon the certificate. It also tendered to the executor of Hanf’s estate a return of all assessments paid by him upon such certificates, which, by the terms of the contract, it was under no obligation to do. The Morrison Gase is perhaps the strongest one cited in support of the claim *454of waiver, and that case falls far short of sustaining the claim.

In the present case both ITanf and the agent of the association knew that the by-law limited insurance therein to persons under fifty years of age at the time of the application, and that the association would not insure Hanf if it-knew he was over that age. They also knew that Hanf was over fifty years old, and that the agent had no authority to waive the by-law. Knowing the above facts, these two men entered into a conspiracy to defraud the association, and in pursuance thereof made the application upon upon which the certificate was issued, and, by falsely stating that the age specified in the first application was so stated by a mistake of the agent (in whom the company evidently had confidence), prevented all suspicion of fraud.

If there is a case in the books which holds that a principal is bound by the unauthorized and fraudulent acts of his agent, done and performed pursuant to a corrupt conspiracy between such agent and the person who seeks to obtain the benefit of the fraud, we have not found it. If there is such a case, we decline to'incorporate the doctrine of it into the jurisprudence of this state.

On the question of the age of Hanf the court admitted in evidence, against the plaintiff’s objection, the proofs of loss as an admission by the plaintiffs of the true age of the assured. The court also admitted, against like objection, what purports to be an authenticated certificate of the birth of Hanf, as shown by a church register in Germany, wherein it is stated that he was born June 29,1827. The competency of such evidence was discussed by counsel in their arguments at considerable length. It is not necessary to pass upon the question, because the defense was fully proved without resort to either of those documents, and it is entirely immaterial whether they were erroneously admitted or not. If they are both stricken from the case, it *455was still proper, under the competent and undisputed testimony, for the court to direct a verdict for the defendant.

By the Court.— The judgment of the circuit court is affirmed.