I. The first question which claims consideration is, whether the fact (as found by the jury) that the agents of the defendant by whom the policy in suit was issued,-had notice, when they issued, the same, of the previous insurance of $600 in the Phoenix Company, is a waiver of the condition that the policy shall be void unless the consent of the defendant to such previous insurance be written in it.
This question was elaborately argued, and a long array of authorities cited by counsel on either side to support their respective views. Rut it is unnecessary to comment on the cases; for the principle which must control the determination of the question is settled in this state by repeated adjudications of this court, by which we are bound. Gary & Harmon were the general agents at Oshkosh of the defendant company, and as such issued to the plaintiff the policy in suit. In Miner v. The Phœnix Ins. Co., 27 Wis., 693, the doctrine was asserted and applied to that case, that such agents “ may waive any of the written or printed conditions of the policy, and bind the company by such waiver; and that their representations or statements made, or promise, assurance or verbal consent given, to the assured at the time of issuing the policy, or when acting within the scope of their agency and with knowledge of the facts constituting the breach, will, if confided in and relied upon by the assured, who is himself innocent and makes no misrepresentation or intentionally conceals nothing, amount to such waiver and estop the company from taking advantage of the condition waived.” Many of the cases which sustain that doctrine are cited and commented upon by UixoN, C. J"., in this opinion. Miner v. The Phœnix *327Ins. Co. bas been followed, and the rule established hy it applied, in the following cases: Killips v. Putnam Ins. Co., 28 Wis., 472; McBride v. Republic Ins. Co., 30 id., 562; Devine v. Home Ins. Co., 32 id., 471; Parker v. Amazon Ins. Co., 34 id., 363; Webster v. Phœnix Ins. Co., 36 id., 67; Wright v. Hartford Ins. Co., id., 522; Winans v. Allemania Ins. Co., 38 id., 342; Mechler v. Phœnix Ins. Co., id., 665; Sherman v. Madison Mut. Ins. Co., 39 id., 104.
Unquestionably, the result of these decisions is, that if, when they issued the policy to the plaintiff, Gary & Harmon knew that there was another policy in the Phcenix Company on the same building, their failure to write the consent of the defendant thereto in the policy in suit will not defeat this action. By accepting the premium and issuing the policy with knowledge of the prior insurance, the defendant company is estopped to declare the policy void because its consent to such prior insurance is not written in the policy. See Webster v. Phœnix Ins. Co., supra.
It follows that the learned circuit judge gave the law of the case to the jury correctly.
II. The only other alleged errors which we find it necessary to consider relate to the rulings of the circuit judge on objections to the admission of certain testimony.
The question of fact as to whether Gary & Harmon knew of the insurance in the Phcenix Company when they issued the policy in suit, was the only one of importance litigated before the jury. The testimony upon it is conflicting. That of Mr. Lines, the grantor of the plaintiff, and of Mr. Boberts, her husband and agent, is to the effect that they informed Mr. Gary of the fact and showed him the Phosnix policy at the time or immediately before the policy was issued to the plaintiff. Mr. Gary, who issued the latter policy, denies knowledge of the existence of the Phcenix policy; and his clerk, who was present at the interview between Lines, Bob-erts and Gary, and who wrote the plaintiff’s policy, testified *328that he heard nothing said at that time about the Phoenix policy. Mr. Harmon also denies knowledge of its existence before the plaintiffs policy was issued. The report of Gary & Iiarmon of the transaction, called a daily report, written by the clerk and signed by Gary in the name of the firm, was read in evidence. This report was made and forwarded to the defendant on the day the policy was issued. It is therein stated that there is no additional insurance on the property insured.
The following questions were put to Mr. Gary on behalf of the defendant, and objections thereto were sustained by the court: “ Q. Is there any rule as to the Continental that you follow, when you insure a piece of property, with reference to the amount of insurance? Q. Assuming the value of the property to have been to your knowledge $1,800, and no more, with $600 insurance already upon it, would you have put $1,200 more upon it? ”
If the answers to the questions might have tended “ in any reasonable degree to establish the probability or improbability of the fact in controversy,’5 they should have been received. Per Davis, J., in Ins. Co. v. Weide, 11 Wall., 438. The rule which the agents followed in insuring property in the defendant company, in respect to the relative proportion between the value of the property and the risk, and what would have been their action in the present case on the hypotheses that the value of the insured building was $1,800, and that there was $600 insurance upon it, are, in a certain sense, parts of the res gestee. The rule and the extent to which it controlled the actions of the agents were existing facts, intimately related to the main fact in controversy. Had the witness answered that in all such cases they limited the risk to two-thirds the value of the property, less any other insurance upon it, and that had they known of the Phoenix policy they would not have taken a risk for more than $600 upon the plaintiff’s.building, it seems to us that the testimony would tend to prove that the *329agents liad no knowledge of the Phoenix insurance when they took a risk of $1,200 on a building which they at the same time valued at $1,800. Ye think that such testimony would tend in a reasonable degree to establish the improbability of the disputed proposition of fact, to wit: that the agents had notice of the existence of the Phoenix policy. The testimony on that proposition was so nearly balanced that, had the rejected testimony been admitted, it might have changed the result. We think, therefore, that the offered testimony was material and relevant and should have been received. This view is sustained by some of the cases cited by the learned counsel for the defendant. See also 1 Greenl. on Ev., § 108.
JBecause of this error, the judgment of the circuit court must be reversed, and the cause remanded for a new trial.
By the Court. — So ordered.