That it was competent for the defendant’s secretary, after receiving notice of a change of risk, to waive writing such change upon the policy, and to issue a valid renewal of the policy, seems too well settled by authority to be doubted. N. Y. Cent Ins. Co. v. National Prot. Ins. Co., 14 N. Y. 92; Ames v. N. Y. Union Ins. Co., id. 253; Wilson v. Genesee Mut. Ins. Co., id. 418; Liddle v. Market Ins. Co., 4 Bosw. 184; Whitwell v. Putnam Fire Ins. Co., 6 Lans. 166, and cases there cited.
The essential fact to be ascertained is, whether the company, with knowledge of the alteration, consented to continue the insurance. It would be equally a fraud upon the rights of the. plaintiff, whether they re-insured merely upon a new insurance, or continued the old; for, if they had declined to continue, the plaintiff was entitled to a return of unearned premium.
Heither can I see much force in the argument that the parties have agreed that only written evidence shall be admissible to prove a waiver.
It is difficult to see why this contract may not be modified or waived by a subsequent contract to that effect, as well as any other stipulation in the policy. The power that made these conditions can unmake, vary or waive them; and the fact that they have done so is susceptible of proof in the ordinary way.
The essential fact to be ascertained is, whether the defendants waived writing the change upon the policy. That being ascertained, it follows that there was a binding contract of insurance.
How that shall be proved is a matter to be determined by the rules of evidence. To hold any other doctrine would determine that parties may make rules of evidence. If such rules could be made by writing, why not without writing; and if without writing, then upon every trial in court the issue will be not what are the questions raised by the pleadings, but what have the parties agreed shall be taken or refused as proof.
Taking the findings of fact in this case, the position of the defendants, is this: “ True, we received notice of the change of risk, waived writing it upon the policy, took the premium and renewed the insurance; but you have no right to the fact, because we have provided that it shall be proved only by a writing indorsed upon the policy.”
What is the charm in the condition that the waivei: shall be in writing, more than that the change of risk shall be in writing ? It *400is apparent from -the case that the former was waived, as matter of fact, as effectually as the latter.
It is evident, from the nature of things, that a party cannot contract away his power to make a new contract; for the same inherent power that made such a contract can waive or make a new one.
What is competent evidence to prove such waiver or new contract is a question of law to be determined by the coui»t upon the trial.
I see no reason to reverse any of the findings of fact, as there seems to be evidence to sustain them.
The judgment must be affirmed, with costs.
Judgment affirmed.