Thе defendant resisted recovery on the ground that the plaintiff at the time he procured the policy was not the sole and unconditional owner of the insured property, although in his proof of loss he made oath that no other person was interested in it. In his complaint the plaintiff declared on the contract of insurance, but in his reply tо the answer he alleged that the defendant had waived the pleaded provision that the ownership of the property must be sole. The basis of the alleged waiver is lаid in the plaintiff’s testimony, the material part of which is substantially as follows: “I told him (the agent) I would leave it absolutely to him for protection and he wrote me a policy. He sаid he would put me in a company that would absolutely protect me from any loss by fire in any way. When I told him I would leave it absolutely with him what policy to write he told me not to be uneasy, he would put me in a company that would protect me from any fire whatever, to rest easy. He didn’t ask me about any mortgages whatever. . . . *426 When the policy came back to me I put it in my trunk. I am not an educated man. I am an Indian and can read a little hit, not good. I cannot understand the terms of the policy. I cannot read it well enough to tell what it was. I just thought it was all right. I relied upon the statements made to me by' the agent of the insurance company that it would protect me. I never did read it over. I wouldn’t understand the clause stating that the interest of the insurer would be “unconditional sole ownership” would prevent me from giving a mortgage.”
The plaintiff, does not contend that the agent madе any false representation which would avoid the policy, but rather that he waived the provisions of the written contract regarding the sole ownership of the property and that the defendant for this reason is liable to the plaintiff for the loss he sustained.
The generally accepted definition of a waiver is the intentional relinquishment of а known right. It is a voluntary act and implies an election by the party to dispense with something of value or to forego some advantage which he might at his option have demаnded and insisted on. 27 R. C. L., 904. In
Mfg. Co. v. Building Co.,
The plaintiff, however, rests his contention on another proposition. He argues that the agent negligently failed to make any inquiry as to the оwnership of the land or as to any encumbrances upon it, that the plaintiff did not comprehend the form and meaning of the policy and relied upon the agent’s promise fully to protect him; and that by accepting the premium the defendant contracted in any event to save the plaintiff harmless from loss by the burning of the property insured. The сontention involves two propositions: (1) that it was the duty of the agent particularly to inquire into the question of sole ownership, and (2) that his failure to do so combined with the plаintiff’s evidence amounted substantially to an unconditional contract of insurance by the terms of which the defendant without regard to the stipulations in the policy became absolutely liable for the plaintiff’s loss.
*427
We cannot approve the position that in the absence of a request it was the agent’s legal duty to explain the meaning аnd effect of all the provisions in the policy, or that his failure to inquire as to outstanding mortgages was a waiver of the requirement of sole ownership. We do not understand the cases cited by the plaintiff as warranting this conclusion. In
Modlin v. Ins. Co.,
In the case before us another principle may be applied. The plaintiff was not an educated man, but he could read and write. He did not read the policy or request the agent to read it. A persоn who can do so is generally required to read a written contract before signing or accepting it and ordinarily his failure to do so is negligence for which the law affords no redress. This principle, of course, would be modified in case of positive fraud, but here no fraud is alleged or relied on.
Leonard v. Power Co.,
It is obvious, then, that the substance of the plaintiff’s contention when analyzed is this: that the plaintiff and the defendant’s agent entered into a parol contract, utterly at variance with and contradictory of the written contract, by which the defendant unconditionally insured the plaintiff against loss by fire. Can such a contract be enforced under the facts disclosed by the record?
The policy sued on is of the standard form prescribed by statute. It is provided that no fire insurance company shall issue fire insurance policies on property in this State other than those of the standard forpi duly filed and designated as the standard fire' insurance policy of the State. C. S., 6436, 6437. This form of policy contains a provision against waiver, and a waiver of thе stipulations or conditions in the policy has been permitted only under circumstances similar to those in the cases of Modlin v. Ins. Co. and Bullard v. Ins. Co., supra, and has never been extended in this jurisdiction to the аpproval of a contract entirely separate and distinct from the standard form. To sanction the power to make such a contract would be equivalent tо the destruction or abolition of the form prescribed by law.
In our opinion there was no waiver by the defendant of the conditions in the policy, and the fact that the sole and unconditional ownership
*428
of tbe insured property was not in tbe plaintiff and that tbe defendant knew nothing of tbe outstanding deeds of trust was sufficient under tbe decisions of tbis Court to invalidate tbe contract of insurance.
Hayes v. Ins. Co.,
During the argument it was urged by the plaintiff that there bad been no return or tender of the premium paid by the plaintiff. The judge suggested an amendmеnt of the complaint but the plaintiff for obvious reasons declined to make the amendment. the defendant in open court then tendered the amount of the premium and the interest thereon from the date of the policy. the course pursued by the defendant was approved, in
Weddington v. Ins. Co., supra,
in which it is said: “It is argued, though, that the company should have returned оr at least tendered the unearned portion of the premium before it could insist upon a forfeiture. the policy expressly provides that the unearned portion оf the premium shall be returned on surrender of the policy. Tbis is the contract of the parties, and we are not permitted to change it. There has been no surrender of thе policy, but the complaint is drawn and the trial proceeded, upon plaintiff’s part, upon the theory that the policy was valid and would not, therefore, be surrendered. the condition precedent to the return of the premium has not been performed, but a refusal to comply with it is to be clearly implied. It has been held in a number of cases that in a case of a breach of condition which invalidates the policy, the company is not bound at its peril, upon notice of such breach, to declare the policy forfeited or to do or say anything to make the forfeiture effectual, and a waiver will not be inferred from mere silence or inaction on its part. It may wait until claim is made under the policy, and then rely on the forfeiture in denial thereof or in defense of a suit brought to enforce payment of it. 6 A. & E. (2 ed.), 939;
Dowd v. Ins. Co.,
We find
No error.