When this case was before us at a former term, (1 Allen, 305,) it was held that the plaintiff could not maintain her action, because the answers given by her to certain interrogatories in the application for insurance were not. correct, and their correctness was made by the policy essential to the validity of the contract. At the second trial, she offered to show that she was induced to accept a policy containing such a condition, by the fraud of the defendants or their officers. But she sues upon the policy. It is the only contract she has, and it is a conditional contract. If she was induced to take such a contract by fraud, she may repudiate it, or have her remedy against the party by whom she was defrauded. But she cannot therefore sue and recover upon a different contract from the one actually made.
2. The insurance company made the policy upon the application in writing, and made its correctness an express condition *570of the validity of the contract. A knowledge by their agent that it was not correct is no evidence of any waiver by the company.
Exceptions overruled.