dissenting. Being unable to concur in the conclusion reached by Mr. Justice Gary, I am compelled to dissent. But as I am unwilling to delay the filing of the opinion, I must content myself with simply indicating the points upon which I dissent, without undertaking to enter into a discussion of such points.
It seems to me that when parties enter into a contract, and reduce its terms to writing, that in the absence of any evidence of fraud or mistake, of which there is no pretense in this case, they must be held to the terms found in the written contract. It is conceded that the contract upon which the plaintiff’s action is based is to be found in the policy of insurance, where the terms and conditions of the contract are set forth clearly and explicitly. One of the conditions there expressed is that if the assured shall effect other insurance upon the property covered by the policy, “without the consent of the company written hereon,” the policy shall be void. There can be no doubt that this condition was violated, for the plaintiff’s own testimony shows that fact; and hence, by the plaintiff’s own showing, she had no cause of action.
*188But it is said that this condition might be, and was, waived by the company. It is true that there might be a waiver of tliis or any other condition in the contract; but the contract expressly provides how alone such waiver might be made, viz: by a writing indorsed on the policy; and there is no pretense that there was any evidence of such indorsement. Hence the testimony offered to show a waiver in any other way than that specifically provided for in the contract, was irrelevant and incompetent. It is said, however, that the premium had not been actually paid at the time of the issuing of the policy, and that by one of the terms of the policy it did not take effect until actual payment of the premium, and such actual payment was not made to the local agent until after such agent had notice that other insurance had been taken out on the property; and, therefore, the policy was void in its inception, and hence the defendant could not maintain the defense upon which it relied without showing a return or an offer to return the premium subsequently paid. . In view of the allegation in the complaint, “That on the 19th day of February, A. D. 1892, in consideration of the payment by the plaintiff to the defendant of the premium of $16.50,” &c., and in view of the statement in the policy, filed as exhibit A, and offered in evidence by the plaintiff, that “The Springfield Fire and Marine Insurance Company, of Springfield, Mass., in consideration of $16.50 to them paid by the insured,” &c., it seems to me that both the plaintiff and the insurance company are estopped from saying that the premium was not actually paid on the 19th of February, 1892, the date of the policy, which was before the second policy was taken out, and, of course, before the local agent of the defendant company could have had’ notice of the additional insurance taken out on the 23d February, 1892. The test of this is, that if the property insured had been destroyed by fire between the 19th and the 23d of February, 1892, could there be a doubt that the company would be liable? because they could not be heard to say that the premium *189had not been actually paid to their local agents at the time of the fire, in face of their policy acknowledging receipt of the premium at the date of the policy. While, therefore, it may be true that if the policy was void in its inception, the company would be precluded from taking advantage of the failure of the condition which rendered the policy void in its inception without returning or offering to return the premium received by the company; yet the same would not be true where a policy, valid in its inception, has been rendered void by some act or omission of the assured after receiving such policy; for in this case I am unable to perceive any reason why the company should be required to refund the premium. In such case the assured gets what he bargained for in consideration of the premium, viz: a valid policy for which he pays; and if the assured by his. own act renders the policy valueless, there is no reason why the premium should be refunded.
I am unable to perceive how the appellant can complain of what occurred when she closed her case, which is fully set forth in the opinion of Mr. Justice Gary. When defendant’s counsel asked plaintiff’s counsel if they had any further evidence to offer upon the question of waiver, adding that, if they did not, the defendant would offer no evidence, and received no reply, it seems to me that the motion for a nonsuit properly followed. But, more than this, when, in the argument of the motion for a nonsuit, plaintiff’s counsel expressed a desire to put the plaintiff on the stand, and was told that he could do so then, and plaintiff’s counsel declined to avail himself of the opportunity offered, I am at a loss to conceive what cause of complaint the plaintiff can possibly have; especially as it appears that defendant’s counsel then stated that he had no evidence to offer, and hence there was nothing for the plaintiff to reply to. It will be observed that the plaintiff, by her own testimony, had shown a breach of the condition as to additional insurance, and hence it was necessary for her to show, in her evidence in chief, that there had been a waiver of such con*190dition, for otherwise her own testimony would have proved her out of Court. But inasmuch as the defendant offered no testimony in reply, I am unable to perceive how the plaintiff was prejudiced, as there was nothing to which she could reply.
For these reasons, thus briefly and imperfectly stated, I am of the opinion that the judgment of the Circuit Court should be affirmed.