delivered the following dissenting opinion:
This is the second appeal in this case, a judgment for the plaintiff having been reversed by the decision of this court reported at 63 Or. 427 (128 Pac. 427). The facts disclosed in the present record are identically the same that appeared on the former appeal. That decision became the law of the case, and is binding on all subsequent litigation between the same parties for the same thing: Section 756, L. O. L.; Powell v. D. S. & G. R. R. Co., 14 Or. 22 (12 Pac. 83); Thompson v. Hawley, 16 Or. 251 (19 Pac. 84); Applegate v. Dowell, 17 Or. 299 (20 Pac. 429); Kane v. Rippey, 22 Or. 299 (29 Pac. 1005); Portland Trust Co. v. Coulter, 23 Or. 131 (31 Pac. 282); Stager v. Troy Laundry Co., *13541 Or. 141 (68 Pac. 405); Krebs Hop Co. v. Livesley, 55 Or. 227 (104 Pac. 3).
In spite of the former decision, however, it is still contended that giving the note payable to the order of the soliciting agent as an individual, without naming or referring to the company in any way, was of itself payment of the premium. In Black v. Sippy, 15 Or. 574 (16 Pac. 418), Mr. Chief Justice Lord said:
“Nothing is better settled than that accepting a note is not payment of an account, nor is accepting one note in renewal of another payment of the old note, unless there is an agreement that the note should be accepted in payment.”
This case has been followed in subsequent decisions of this court to the present time: Johnston v. Barrills, 27 Or. 251 (41 Pac. 656, 50 Am. St. Rep. 717); Schreyer v. Turner Flouring Co., 29 Or. 1 (43 Pac. 719); Kiernan v. Kratz, 42 Or. 474 (69 Pac. 1027, 70 Pac. 506); Stringham v. Mutual Ins. Co., 44 Or. 447 (75 Pac. 822). We applied the principle in our former decision to the case at bar.
In order to bind the defendant by the act of Thurston in taking a note in his own name it must appear that Thurston had authority to thus bind the company. There is no pretense of any evidence that Thurston had such authority. There is not a line of testimony tending to show that the company even held him out as being thus authorized to bind it. On the contrary, at the very inception of the transaction in the application which Cranston signed he agreed “that only the officers of the company at its home office can accept or reject this or any application and that no knowledge of any person and no statement made or given by or to any person shall bind the company or in any man*136ner affect its rights, unless such knowledge and statement are set forth in writing in this application.”
He thus had actual notice of the limitation upon the authority of Thurston. The assured further agreed in the same application that “the policy issued hereunder snail not take effect until the first premium shall have been paid and accepted by said company or its authorized agent and such policy delivered to and accepted by me while I am in good health.”
The policy itself, upon which the plaintiff relies and by which she must be bound, having instituted her action upon it, says plainly:
“All premiums on this policy are due and payable at the home office of the company in the city of San Francisco, but may be paid to agents of the company producing receipts signed by the president or a vice-president, secretary or assistant secretary, and countersigned by such agents. Only the president or a vice-president, together with the secretary, or assistant secretary (and they only in writing signed by them), have power on behalf of the company to issue permits, or make or modify this or any contract, or extend the time for making any premium payment, and the company shall not be bound by any promise or representation heretofore or hereafter given by any person, other than the above-named officers, and by them only in writing and signed conjointly as stated.”
Plainer or more emphatic language could scarcely be used to impart notice to the assured of the limitations on the authority of the agent with whom he was dealing. Thurston had no such receipt, and Cranston dealt with him at his own peril, especially so in view of the many warnings about limitations on Thurston’s authority: Baker v. Seaweard, 63 Or. 350 (127 Pac. 961). Moreover, the evidence of the scope of Thurston’s authority is in writing in the form of Cranston’s *137application and the policy in question. Hence it is reduced to a question of law for the court, under the holding of Baker v. Seaweard, to decide whether or not the agent acted within the scope of his authority. With all these restrictions pressed upon his attention in writing it was manifest to Cranston as a matter of law that Thurston had no authority to represent that a note to himself would he taken as payment of the premium. On well-established principle the transaction cannot rightly be otherwise construed.
The record is utterly silent about whether or not even Thurston agreed that the note should be taken in payment of the premium, or that Cranston gave the note for the premium. The burden is upon the plaintiff to show that such an agreement was made. The only persons who were in a position to know whether or not the note was given and accepted even by an authorized agent as liquidation of the premium were Cranston, who is dead, and Thurston, who absconded. No utterance is attributed to either of them on that point. The record discloses that Cranston himself never paid the note, but that subsequent to his death, evidently as an afterthought, some stranger, presumably in the interest of the present plaintiff, sought out the then holder of the note and paid it to him. The fact is undisputed that the defendant never received any payment whatever on account of the policy.
It is urged, however, that the company waived this condition by charging the amount of the initial premium to its general agent when the policy was forwarded to him for delivery. This, however, was a mere matter of bookkeeping, and even if the company looked to and expected payment from its agent, or even took security from him for the payment of premiums collected by him, this was a collateral matter *138which did not concern the assured, and of which he cannot take advantage because he was not a party to the transaction. It is analogous to the principle laid down in Steel v. Island Milling Co., 47 Or. 293, 297 (83 Pac. 783, 785), where Mr. Chief Justice Robert S. Bean said:
“The passing of the amount thereof to the credit of the stockholder on the books of the company was a mere matter of bookkeeping, and in no sense amounted to a payment. The payment of a pecuniary obligation is made by the delivery of money or something which is accepted by the- creditor as equivalent thereto” (citing authorities).
Moreover, an essential element of waiver is that it must be an act of acquiescence on the part of the individual waiving a condition with full knowledge of all the facts upon which the waiver depends. Here there is no testimony whatever showing that the officers authorized to waive conditions on the part of the company, as stipulated by the assured in his application and in the policy which he accepted, had the least knowledge that Cranston had given his note to discharge the initial premium, or for any purpose. On the contrary, the only evidence in the case is to the effect that no one connected with the company except Thurston ever heard of the note until after the death of Cranston. The prime requisite of binding waiver is utterly absent in this case.
By a strange perversion of logic the contention is made on behalf of plaintiff that the company agreed to look to its general agent, and he to Cranston, for the payment of the premium, and that thus a novation was formed whereby the original obligation of Cranston to the company was discharged and the company accepted its general agent as responsible instead of *139Cranston. The testimony, however, does not bear out this contention, and neither is the same pleaded. Cranston did not agree to pay Booth, the general agent. Neither did Booth agree to accept Cranston. Booth did not agree to pay the company unconditionally or at all, unless he collected the premium. The company did not agree to accept Thurston, to whom the note was given. Neither did Thurston agree to pay the company. Indeed, the company does not appear to have had any direct dealings with Thurston, he being a subagent responsible only to the general agent who appointed him. There is neither pleading nor testimony to sustain a novation. It takes more than two parties to make such an agreement, and there is an utter failure of testimony to establish an agreement between any two parties, much less between three in this case.
If we should yield to the agrarian communistic spirit of the age, it would naturally follow that we should charge the company with the acts of Thurston which Cranston himself knew were utterly unauthorized, and .so award to the plaintiff a gratuity which her husband neglected to secure for her. But it Is wrong to take something for nothing even from a life insurance company, and in obedience to this sound principle of morals, as well as of law, the judgment should be reversed.
Mr. Justice Moore concurs in this dissenting opinion.