Lyon, J.

The appeal, in form, is from the order denying the motion for a new trial, and also from the judgment; but it was quite unnecessary to take it in that form. Such order involves the merits and necessarily affects the judgment, and would therefore be reviewed by this court on an appeal from the judgment alone. Tay. Stats., 1632, § 6.

"We find it unnecessary to determine whether the affidavits on which the motion for a new trial was predicated, show a case of surprise which entitles the defendant to a new trial; because, if it be conceded that when the policy was renewed (December 2, 1872), the agent of the defendant did not know and had never been informed that additional insurance had been taken-on the plaintiff’s house in the Imperial Company, we are still satisfied that the judgment of the circuit court is correct. Our reasons for this opinion will be briefly stated.

In Miner v. The Phœnix Ins. Co., 27 Wis., 693, this court held that the breach by the insured of a condition in the policy, the effect of which, by the terms of the policy, was to render the same void, may be waived by the insurer. The logic of that case (and of numerous others decided by the courts of this country) is, that upon a breach of such a condition the contract of insurance does not become absolutely void, but voidable only. That is to say, it becomes void at the election of the insurer, and not otherwise. See Vide v. Germania Ins. Co., 26 Iowa, 9, and a learned note at the close of the opinion, where this subject is ably considered, and a large number of cases relating to it are cited.

The question before us in the present case is, whether the facts that the defendant required the plaintiff - to furnish plans and specifications of the insured house, after notice of the additional insurance, and that the plaintiff furnished the same, or procured them to be prepared, at a large expense, pursuant to such requirement, are sufficient evidence of a waiver of the condition, and estop the defendant from asserting that the *72policy was forfeited because its consent was not obtained to such additional insurance.

By applying to this question certain elementary legal principles, it may be readily and correctly answered. Those principles are thus stated by an able and discriminating law writer: “ A party cannot occupy inconsistent positions; and where one has an election between inconsistent courses of action, he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the fact, determines his election, and works an estoppel.” Bigelow on Estoppel, 578.

In the present case the defendant had an election between two courses of action, each entirely inconsistent with the other. It could have declared the policy void because of the additional insurance effected without its consent, or it could treat the policy as valid, and, pursuant to stipulations therein, could require the plaintiff to furnish, in addition to the usual proofs of loss, plans and specificaions of the building destroyed. With full knowledge of all the facts, it chose the latter course; and the plaintiff, at great expense to herself, complied with its requirements. This was a most decisive act on the part of the defendant — an act utterly inconsistent with an election to consider the policy void for a breach of any of the conditions thereof; and it seems very clear to us that the defendant is estopped thereby from insisting on a forfeiture of the policy.

It is quite immaterial that the plaintiff was also required by another insurance company, having a risk on her house, to furnish such plans and specifications. The requirement of this defendant in that behalf, as evidenced by the letter of February 7, 1878, written by its general agent, is entirely independent of any similar requirement by any other insurance company. But we do not see that the principle of the transaction would be any different, had the defendant joined with some other company in requiring the plans, etc., and had the *73same been furnished to such companies jointly. The act of the defendant would still be an election to treat the policy as a valid and subsisting contract.

It follows from the view we have taken of the case, that the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.