208 N.C. 99
N.C.
1935
OlaeKSON, J.

Thе defendant’s first and only exception and assignment of error embraces its exception to the order of his Honor, G. Y. Oowper, special judg'e presiding at the November Term, 1934, permitting the plaintiff to amend his pleadings so as to set up a waiver of thе conditions of the policy by the defendant, and the defendant contends that said оrder was erroneously granted for that: “(1) It is in violation of section 547, C. S., in that the amendment changes substantially the claim of the plaintiff, and (2) the court was without authority to permit a replication, for that the time for replying to the further answer and defense of the defendant had long since expired.” We cannot so hold.

N. 0. Code 1931 (Michie), sec. 536, is as follows: “The judge may likewise, in his discretion, and upon such terms as may be just, ‍‌​​‌‌​​​​​‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​​​​​‌​‌​​​‌​​​​‌‌‍allow an answer or reply to be made, or other act to be done, after the time limited, or by аn order to enlarge the time.”

Section 547 is as follows: “The judge or court may before and after judgment, in furtherance of justice, and on such terms as may be proper, аmend any pleading, process, or proceeding by adding or striking out the name of any party; by correcting a mistake in the name of a party, or a mistake in any othеr respect by inserting other allegations material to the case; or, when the аmendment does not change substantially the claim or defense, by conforming the plеading or proceeding to the fact proved. When a proceeding takеn by a party fails to conform to law in any respect, the trial judge may permit an аmendment of the proceeding so as to make it conformable thereto.”

The contention of defendant cannot be sustained. In Aldridge v. Ins. Co., 194 N. C., 683 (685), we find: “At a special term of the Superior ‍‌​​‌‌​​​​​‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​​​​​‌​‌​​​‌​​​​‌‌‍Court held in December, 1926, the feme plaintiff was madе a party and leave was granted the plaintiffs to reply to the answer. The defendant objected to the order authorizing the replication, apparently on the ground that pleadings must be filed and issues joined before the clerk. Public Laws 1921, Ex. Ses., ch. 92; Publiс Laws 1923, ch. 53; Public Laws 1924, Ex. Ses., ch. 18. These statutes have reference to the clerk and wеre not intended to impair the broad powers conferred on the judge, who ’may in his disсretion and upon such terms as may be just allow an answer or reply to be made, or other act done, after the time limited or by an order to enlarge the time.’ C. S., 536; McNair v. Yarboro, 186 N. C., 111; Cahoon v. Everton, 187 N. C., 369; Battle v. Mercer, ibid., 437; Roberts v. Merritt, 189 N. C., 194; Butler v. Armour, 192 N. C., 510. The оrder was an exercise of the court’s ‍‌​​‌‌​​​​​‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​​​​​‌​‌​​​‌​​​​‌‌‍discretion, and will not be disturbed.”

*102 In Hines v. Lucas, 195 N. C., 376 (377), is tbe following: “Tbe judgе bad1 tbe power to extend tbe time for filing complaint and bis refusal to dismiss tbe action, under tbe facts presented, was at least equivalent to an order permitting tbe filing of complaint. Under tbe law as now written, when a cause is properly before tbe judge, be bas power, in tbe exercise of a sound legal discretion, to extend tbe time for filing pleadings. C. S., 536; Aldridge v. Ins. Co., 194 N. C., 683. While it is true that tbe Aldridge case, supra, and tbe line of cases therein cited, refer more particularly to filing answer, no sound reason occurs ‍‌​​‌‌​​​​​‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​​​​​‌​‌​​​‌​​​​‌‌‍to us why tbe same power does not exist for enlarging tbe time for filing complaint. C. S., 536.” Bowie v. Tucker, 197 N. C., 671 (673); Washington v. Hodges, 200 N. C., 364 (370); N. C. Practice and Procedure in Civil Cases (McIntоsh), sec. 485, pp. 513-4.

It is well settled by a long line of decisions in this jurisdiction that in tbe absence of fraud or collusion between tbe insured and tbe agent, tbe knowledge of tbe agent, whеn acting within tbe scope of tbe powers entrusted to him,' will be imputed to tbe company, ‍‌​​‌‌​​​​​‌​‌​‌‌‌‌‌​‌​​‌‌‌​‌‌​​​​​​‌​‌​​​‌​​​​‌‌‍though tbe policy contains stipulation to tbe contrary. This principle applies to conditions existing at tbe inception of tbe policy and not after tbe policy bas been issued. Tbe doctrine of waiver is applied by tbe courts upоn tbe well-settled principles of equity. Greene v. Ins. Co., 196 N. C., 335 (339-40); Midkiff v. Ins. Co., 197 N. C., 139 (142); Houck v. Ins. Co., 198 N. C., 303 (305); Colson v. Assurance Co., 207 N. C., 581 (583-4).

In Stockton v. Insurance Co., 207 N C., 43 (44), it is said: “Under their plea of waiver, it was competent for tbe plaintiffs to show that defendant’s agent bad full knowledge of the encumbrance held by tbe Federal Land Bank at tbe time of tbe issuance of tbe policy in suit. Houck v. Ins. Co., 198 N. C., 303, 151 S. E., 628; Aldridge v. Ins. Co., 194 N. C., 683, 140 S. E., 706; Johnson v. Ins. Co., 172 N. C., 142, 90 S. E., 124.”

Tbe amended pleading, which was granted in tbe discretion of tbe court below, did not change substantially tbe cause of action, and it set up a waiver to defendant’s allеgation. A cause of action is stated by plaintiff and tbe demurrer ore terms of defendant cаnnot be sustained. Ordinarily an appeal to this Court will be dismissed when taken from a discretionary order in tbe court below. Tbe judgment of tbe court below is

Affirmed.