The learned counsel for the defendant in their brief on this hearing insist that certain clauses of the policy were omitted in the former opinion (84 Mich. 161), and that similar clauses were never before passed upon in this Court. The first clause referred to is the one containing conditions as to mortgage. The policy provided that the company should not be liable—
“ If the property * * * is or shall become mortgaged * * * -without the assured's written notice to, and without the written permission of, this company indorsed on this policy."
In such case the policy was to be void. As stated . in the former opinion, there was no written application, and defendant's agent was informed by the plaintiff of the mortgage existing upon the property. In obtaining this insurance, this agent represented the defendant, and not the plaintiff. The plaintiff had concealed nothing, but, on the contrary, had disclosed to the defendant, through its agent, the exact conditipn of the property. In O’Brien v. Insurance Co., 52 Mich. 131, the policy provided that the company should not be liable if there was any omission by the assured of the title, incumbrance, etc. The assured had made no statement in regard to any mortgage, although the agent testified that, according to his recollection, he asked him- about it. The Court say:
“The circuit judge charged the jury, in substance, that if they found that the policy was not read to the plaintiff before it was delivered to him, and that the agent gave it to him on his oral application, without directing his attention to the conditions respecting incumbrance, and that the plaintiff, on receiving the policy, was ignorant of them, and that nothing was said, either by the agent or the plaintiff, before or after the emanation of the policy, they might then consider the existence of the mortgage as no impediment to recovery."
This charge was sustained, and the Court add:
*430“If the applicant is guilty of no misleading conduct, the insurer in such a case must be taken to assume the risk incident to the undisclosed incumbrance.”
Why, with the more reason, should it not be held to assume the risk of a disclosed incumbrance, which, for some reason, it has not seen fit to indorse upon the policy? The only difference between that case and this one is that this policy required a written notice by the assured, and permission to be indorsed upon the policy, But, if the attention of the assured in that case had been called to the condition, it would as certainly have avoided his policy as would the clause now under consideration. The principle is the same in both cases, and both must be governed by the same rule. Plaintiff had a right to rely upon the assumption that his policy would be in accordance with the terms of his oral application. If the defendant desired to make it anything different, it should, in order to make it binding upon plaintiff, under the authorities in this State, have called his attention to those clauses which differed from the oral application. It was held in Crouse v. Insurance Co., 79 Mich. 249:
“The restriction upon the agent, being in the policy and not in the application, cannot be construed to refer to the acts or knowledge of the agent prior to the delivery of the policy.”
In that case there was a written application, in which there was an absolute misrepresentation by the assured as to the condition of the property. By the very terms of the policy, it was rendered void if the assured was not the sole, absolute, unconditional owner of the property, and if that fact was not expressed in the written portion of the policy. It was also expressly covenanted that any waiver, to be valid, must be indorsed upon the policy. The assured had correctly stated to the agent who wrote *431out the application the condition of the title, but the agent had failed to put it in the application. The terms of that policy were as strong and explicit as are the terms of the one here involved. A reading of the policy in that case would have shown the assured that his title was not “expressed in the written portion of the policy,” •and that this, by its terms, rendered the policy void. That case, in my judgment, clearly rules the present one.
We deem it unnecessary to discuss again the questions of appraisal and award and the waiver involved. The acts of the adjuster, Stark, whose general authority was ample to adjust the loss, were binding upon the defendant. The law does not require unnecessary things to be done. So far as the plaintiff and the adjuster had agreed upon the amount of the loss, this dispensed with the necessity for any formal proofs. So far as the loss on the house was concerned, this they had agreed to arbitrate. But the defendant failed to perform its agreement in this respect, and then denied all liability. The •concession made upon the trial as to the adjuster’s authority is stated in the former opinion. If his authority was limited, this was not known to the plaintiff’s agent until he had received the letter of December 12, after the time limited for making the proofs had expired. During the time spent in examining and adjusting the loss, the adjuster said nothing about making the proofs called for by the policy. After agreeing to the arbitration, he wrote on October 29 to Faxon, defendant’s local agent, saying that other losses would demand his attention for perhaps 10 days, and that he would then notify Faxon, or perhaps surprise him some fine morning by dropping in on him without notice, and adds:
“Kindly notify Mr. Gristock of the change in plan, but say nothing of surprising him. Keep your eyes wide open, and please make memorandum of any information *432you may receive, and also give me all the information.”
Mr. Faxon notified the plaintiff’s agent as requested. The agent inquired of Faxon if it would be necessary for him to make out the proofs of loss required by the policy, to which Faxon replied that it would not, There is no intimation upon the record that the loss was not an honest one. Whatever the purpose of the defendant’s agents was, the effect was to mislead plaintiff’s agent, who apparently acted in the utmost good faith. It would, in my judgment, be a reproach upon the law to hold that, under these circumstances, the defendant was not estopped from insisting upon the written condition of its policy, requiring a waiver to be- indorsed upon the policy, and signed by the agent making it. It was my own opinion, upon the former hearing, that the court should have instructed the jury that this condition of the policy was waived; but my brethren thought that the question was properly submitted to the jury, in which opinion I finally concurred. I see no reason, after a careful examination, why our -former decision should be reversed.
Morse, McGrath, and Long, JJ., concurred with Grant, J.