The following opinion was filed November 10, 1908:
Keewin, J.
Several contentions are made by appellant as grounds for reversal, and among others that the court *500erred in failing to find, as requested by defendant, tbat Eer-dinand Yoss was the agent of plaintiff in the insurance matters and that he and plaintiff accepted, adopted, and ratified the by-law of November 13, 1902, and elected to pay the premium provided by the policy and have it commuted accordingly. If the foregoing contentions are sustained no, others need be considered. There can be no doubt upon the evidence that the insuréd acted as the agent of the plaintiff in all matters regarding the policy, and further it appears-that plaintiff had knowledge of the material facts. The evidence shows that the insured had entire charge of the matters for his wife and that she left everything to her husband,, the insured. Conceding, as contended by respondent, that the passage of the by-law constituted a breach or repudiation of the insurance contract assumed by appellant, we approach the question whether the respondent waived the breach, kept the contract alive, and consented to abide by the by-law. The respondent, by bringing suit upon the breach, seeks to> avail herself of the benefits of it after standing upon the contract for a period of four years. Counsel contends that in ' inaking the payments respondent was standing upon the contract; but that position is not consistent with the present suit, based upon the breach committed four years before. Under the circumstances of the case disclosed by the record the insured knew that the premiums were received under the by-law, which provided for the payment of the lesser premium referred to in the by-law and reduction of the insurance named in the policy proportionately. He therefore could not continue to make payments without objection for four years and then claim the benefit of the alleged breach. To permit this would be to suffer the insured to assume the double role for a period of four years of breach and no breach,, as might best serve his or the plaintiff’s purpose. That a party cannot affirm the contract and take advantage of the breach at the same time is well settled. Woodman v. Blue *501Grass L. Co. 125 Wis. 489, 103 N. W. 236, 104 N. W. 920. If, as claimed by respondent, she was simply performing her contract during the four years she made payments, she cannot now avail herself of the breach occurring four years be-* fore, during which time she has kept the contract alive, according to her contention in this court as well as below. Supreme Council v. Lippincott, 134 Fed. 824; Wells v. Hartford M. Co. 76 Conn. 27, 55 Atl. 599. The election to take advantage of a breach must be promptly made. Smith v. Georgia L., S. & B. Co. 113 Ga. 975, 39 S. E. 410; Kilgore v. Northwest Texas B. E. Asso. 90 Tex. 139, 37 S. W. 598; Clymer v. Supreme Council, 138 Fed. 470; Woodman v. Blue Grass L. Co. 125 Wis. 489, 103 N. W. 236, 104 N. W. 920. This rule is peculiarly applicable in mutual insurance contracts, where the insured practically is on both sides of the contract, as insurer and insured. In the instant case about four fifths of the policy-holders complied with the bylaw. It was passed, obviously in good faith, to maintain the solvency of the company. In fact, the whole scheme, beginning with the contract of consolidation and ending with the passage of the by-law, appears from the record to have been •carried out for that purpose. The insured and respondent had notice of such purpose, knew the company was run on the idea that the by-law was valid, and it was their duty, in justice to other members of the defendant mutual company, to seasonably elect whether they would treat the passage of the by-law a breach or not. Borgards v. Farmers’ Mut. Ins. Co. 79 Mich. 440, 44 N. W. 856; Evans v. Southern T. M. R. Asso. 76 App. Div. 151, 78 N. Y. Supp. 611; Reynolds v. Supreme Council, 192 Mass. 150, 78 N. E. 129; Pain v. Société St. Jean Baptiste, 172 Mass. 319, 52 N. E. 502; Smith v. Georgia L., S. & B. Co. 113 Ga. 975, 39 S. E. 410; Kilgore v. Northwest Texas B. E. Asso. 90 Tex. 139, 37 S. W. 600; Supreme Council v. Lippincott, 134 Fed. 824; Foss-Schneider B. Co. v. Bulloch, 59 Fed. 83.
*502It is insisted by attorney for respondent that the appellant ■was not prejudiced by the delay in failing to rescind, and he bases his contention upon the doctrine- of estoppel. Here the question is not one of estoppel, but waiver. And while there is considerable confusion in the books.respecting the use of these terms indiscriminately, there is a wide difference in their meaning in the law as ordinarily applied. A waiver is the voluntary relinquishment of a known right, benefit, or advantage. Pabst B. Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563; Stewart v. Crosby, 50 Me. 130; Cowenhoven v. Ball, 118 N. Y. 231, 23 N. E. 470. Voluntary choice is the essence of waiver, and the doctrine. of waiver is not necessarily predicated upon estoppel. Dailey v. Kennedy, 64 Mich. 208, 31 N. W. 125; Cassimus Bros. v. Scottish U. & N. Ins. Co. 135 Ala. 256, 33 South. 163; Pabst B. Co. v. Milwaukee, supra. Rut if we were to apply the principles of estoppel to the case in hand we think the respondent could not escape. Assuming, as insisted by respondent, that there was a repudiation in November, 1902, which justified rescission, the insured and the plaintiff continued to stand upon the policy of insurance, claiming the benefits of it without paying the increased premium, while the appellant was carrying the risk for the full value of the policy, while if rescission had been promptly made the appellant would only be liable for the, damages caused by the breach. In other-words, upon the respondent’s theory the plaintiff could, during the four years which elapsed between the date of the alleged repudiation and the commencement of this action, have stood on repudiation or no repudiation as best served her purpose. We cannot assent to such a proposition. Supreme Council v. Lippincott, 134 Fed. 824; Clymer v. Supreme Council, 138 Fed. 470.
Point is made by respondent that the insured or plaintiff did not have knowledge of the effect of the by-law until 1907. This position upon the record is clearly untenable. It is *503not denied but that the insured received a copy of the bylaw and the letters referred to in the statement of facts in 1903,' and also received notices as premiums became due, stating amounts, receiving one in February, 1903. These papers informed the insured fully of the increase in premiums and the effect of paying the rate mentioned in the policy as well as the larger rate. The insured also received and retained the policy of reinsurance. He cannot be permitted to say that he did not know the contents of these papers. Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246; Kruse v. Koelzer, 124 Wis. 536, 102 N. W. 1072. Counsel for respondent cites over 400 authorities, some of which he frankly admits he has not examined. We have spent much time • and labor upon them. Those strongest in support of the position of counsel for respondent on the question upon which the case turns are Williams v. Supreme Council, 80 App. Div. 402, 80 N. Y. Supp. 713, and Smith v. Supreme Council, 94 App. Div. 357, 88 N. Y. Supp. 44. In the first case there was clearly no waiver. The premium was paid under protest, the insured standing upon the policy as originally made. Besides, there was a flat reduction in the amount of the benefit from $5,000, as provided in the policy, to $2,000. In the latter case (Smith v. Supreme Council, supra) there was a similar cut, and the action was brought upon the policy after death of the insured. It also appears, as stated in the opinion, that the insured did not have knowledge of the change and hence there could be no acquiescence or ratification, and that, since he had no notice of the change, his contract rights could not be affected by it on the theory of acquiescence, ratification, or estoppel. Moreover, the opinion is in direct conflict with Evans v. Southern T. M. R. Asso. 76 App. Div. 151, 78 N. Y. Supp. 611.
We do not decide whether the passage and attempted enforcement of the by-law was a breach of the contract; but, as*504suming that it was, we axe convinced upon the whole record that the plaintiff and insured waived the right to maintain an action because of such breach, and therefore the judgment must he reversed.
By the Court. — The judgment below is reversed, and the action remanded with instructions to render judgment for de^ f endant dismissing the action.
Barnes, J.
(dissenting). Under the contract of insurance involved in this case the insured was obliged to make periodical payments of the stipulated premium under penalty of having his contract rights forfeited. The payment of these premiums was entirely consistent with a determination on the part of the insured to stand on the contract obligation and insist that the insurer abide thereby. The insured was entitled to proceed to carry out his part of the contract, and might well ignore the arbitrary and impudent assumption, on the part of the insurer, of the right to relieve itself of two thirds of its contract obligation by going through the formula of passing a by-law to that effect. The obligation of a contract is not so easily disposed of. If it could be, there would be little stability to such obligations. As was well said by the Pennsylvania court in Becker v. Berlin Ben. Soc. 144 Pa. St. 232, 22 Atl. 699, the passing of the alleged by-law “was certainly an easy mode of relieving the society of an obligation, and, if successful, will doubtless be followed by other similar associations. The difficulty in the way of this convenient mode of paying debts is that it is repudiation pure and simple.” To the same effect are Covenant Mut. L. Asso. v. Kentner 188 Ill. 431, 442, 58 N. E. 966; Becker v. Farmers’ Mut. Ins. Co. 48 Mich. 610, 12 N. W. 874; and People v. Empire Mut. L. Ins. Co. 92 N. Y. 105.
The ability or inability on the part of the insurer to carry out its contracts is immaterial. Whether it would be wise *505or unwise for the policy-holders to insist on their rights is beside the question. The courts are not mailing contracts for parties. If the insurance company could induce the policyholders to surrender the contracts which they held and accept others in lieu thereof, it was within its province to do so. If it could not, then it should take the route traveled by other insolvents. It could not, without the consent of the insured, assume to substitute an entirely different obligation on its part from that which it was bound under the contract to meet. To say that a party may deprive himself of two thirds of the benefit of his contract without consideration, by carrying out his part of it and by simply disregarding an unwarranted attempt on the part of the insurer to foist another contract on him, is carrying the doctrine of waiver away beyond where T think it should be carried. The insurer has not been misled to its detriment, and had no right to assume, in the absence of express consent by the insured, that any such proposition would be agreed to.
If A. writes B. that the latter owes him $1,000 and B. ignores the letter, in a suit brought to recover such sum, by most courts the fact of writing the letter, and of failure to reply, could not be shown in evidence. In some jurisdictions such facts might be shown as tending to establish an admission; but the evidence at best, if receivable at all, would be very weak. Jones, Ev. § 583 (599) ; 2 Wigmore, Ev. § 1073. Here, it seeems, the same facts are not only admissible as tending to show assent or ratification, but the evidence is held conclusive. What, at best, is only held to be inconclusive evidence of a weak and unsatisfactory character of an eviden-tiary fact, is here decided to conclusively establish a waiver.
Neither do I think there is any justification for construing a contract made by a mutual life insurance company differently from a contract made by a stock company engaged in the life insurance business. Considering the purposes for which this class of contracts are made, stability above all *506things is desirable. In my judgment it is neither just to the insured nor expedient for the insurer that such contracts should rest in uncertainty. The holder of a policy in a mutual life insurance company should feel that his contract is just as inviolable as that made with any other insurer. The volume of this class of business is too large to be jeopardized by anything bordering on a lax construction of such contracts. The authorities do not recognize any such distinction. Ins. Co. v. Connor, 17 Pa. St. 136; Covenant Mut. L. Asso. v. Kentner, 188 Ill. 431, 58 N. E. 966; Becker v. Farmers’ Mut. F. Ins. Co. 48 Mich. 610, 12 N. W. 874; People v. Security Life Ins. & A. Co. 78 N. Y. 114, 125.
A motion for a rehearing was denied January 26, 1909.