On Petition fob Reheabing.
Felt, J.Several propositions are urged by appellant in support of its petition for a rehearing. In our view of the case all of these propositions are disposed of by the original opinion, either expressly or by necessary implication from the language employed and the authorities cited.
Appellant earnestly insists that the court has either failed to comprehend its position, or has by oversight applied principles that have no application to the controlling questions of this case. This contention is especially urged as to the court’s view of the authority of appellant’s local agent and the waiver by him of the provision requiring any waiver affecting the policy to be indorsed thereon in writing in order to bind the company. It is insisted that the mortgaging of the property after the policy was issued rendered it void and relieved appellant from all liability thereon; that no conduct or promise of the local agent respecting the indorsement of the consent of the company in writing on the policy could waive such requirement and have the effect of making appellant liable for the loss occasioned thereafter by the destruction of the property by fire.
It is contended that in the cases cited by the court the insured had a right which was affected by the conduct of the company or its authorized agent, and that in this case the insured had no right to mortgage the property without the consent of the company, and that by doing so without procuring such consent duly indorsed on the policy the same was rendered void; that there*530after the company might “as a matter of grace or favor waive this breach,” but the insured could not clajm that he had any right to the consent of the company to the mortgaging of the property or to have such consent indorsed on the policy in writing.
This view of the questions involved overlooks several important propositions clearly set forth in the opinion, viz.: (1) The local agent had express written authority to act for the company in giving consent to the mortgaging of property insured through his agency, and to make the necessary indorsement on the policies to evidence such consent and transfer of interest to the mortgagees. (2) The local agent gave such consent and promised to make the requisite indorsement on the policy to comply with the provisions thereof. (3) At the time such consent was given in January, the policy was in the possession and under the control of the local agent and so remained until after the fire occurred in August following.
14. In giving consent and promising to indorse the policy as requested by the insured, the local agent acted within the scope of his agency. His knowledge, his promise, and his failure relating to the mortgage on the property are all imputable to and binding upon the company. After giving consent and promising to indorse the same upon the policy then in the possession of its duly authorized agent, as above indicated, it became a matter of contract, obligating appellant to execute its agreement, and was no longer “a matter of grace or favor,” to be bestowed or withheld at its pleasure. According to appellant’s own statement, if this view is correct, the case is controlled by the principles announced and the authorities cited in the original opinion.
As supporting the views we have announced we refer to the case of Havens v. Home Ins. Co. (1887), 111 Ind. *53190, 92, 12 N. E. 137, 138, 60 Am. Rep. 689, wherein our Supreme Court, by Mitchell, J., said: “Insurance policies are prepared by the companies, and contracts of insurance are usually consummated by experts on the-one hand, and inexperts on the other. The policy of the law is, therefore, to give them such an interpretation as to prevent a forfeiture whenever upon principles of fair construction such a result is possible. It is abundantly settled that, notwithstanding conditions in the policy, if at the time the insurance was effected, or afterwards, there were conditions, uses or incidents of the risk which were in conflict with conditions in the policy, and which were known to the insurer, or its agent, whose knowledge is imputable to the company, such conditions, uses, or incidents cannot be used to defeat a recovery after a loss has occurred. Issuing or continuing a policy of insurance, with full knowledge by the company of existing facts, which, according to a condition of the contract, make it voidable, is a waiver of the condition. If it were otherwise, the company would be enabled to perpetrate a fraud upon the assured. Home Ins. Co. v. Duke, 84 Ind. 253; Aetna Ins. Co. v. Shryer, 85 Ind. 362; Excelsior, etc., Ass’n v. Riddle, 91 Ind. 84; Indiana Ins. Co. v. Capehart, 108 Ind. 270.”
24. *53225. *531The provisions of the policy rendering it void if the property insured should be encumbered without the written consent of the company indorsed thereon, and that no agent has authority to waive any condition of the policy except as therein stipulated, and that no waiver is Binding on the company unless written upon, or attached to, the policy, are all stipulations in favor of the company, which it could waive by express agreement or by conduct, and which in the case at bar, as it comes to this court must be held to have been waived by the promise, failure, and *532conduct of appellant’s authorized agent, acting within the scope of his agency, or as sometimes expressed by the courts, appellant is thereby estopped to deny such waiver. Insurance Co. v. Norton (1877), 96 U. S. 234, 24 L. Ed. 689; Havens v. Home Ins. Co., supra, 93, 95; Sweetser v. Odd Fellows, etc., Assn. (1889), 117 Ind. 97, 100, 19 N. E. 722; Phenix Ins. Co. v. Tomlinson (1890), 125 Ind. 84, 86, 25 N. E. 126, 9 L. R. A. 317, 21 Am. St. 203; Union, etc., Ins. Co. v. Whetzel (1902), 29 Ind. App. 658, 666, 65 N. E. 15, and cases cited.
i The petition for a rehearing is overruled.
Note. — Reported in 114 N. E. 763, 116 N. E. 752. Insurance: waiver of stipulation in policy that conditions can be waived, only by writing issuing from the insurer; 107 Am. St. 99, 100, 19 Cyc 777, 778.