Where the agent, as in this case, through whom the policy is delivered, has no power to pass upon the risk or make any contract, he cannot, I think, waive the warranty contained in the policy. Nor do I think that the knowledge of such agent of the untruthfulness of the statement contained in the warranty could be deemed the knowledge of the company; and, if so, the mere delivery of the policy through such agent would not evince an election on the part of the company to waive the warranty. The cases cited and relied upon I think are not in point.
Mr. Justice Eeed concurs in this dissent.