The insured failed to pay the premium due October 28, 1892. He tendered it to the Wisconsin branch office May 3,1893, with interest. The money was received, placed to his credit, and the matter referred to the home office. The home office replied, insisting on a medical examination ; and this demand was communicated to Easmusen by letter, May 15, 1893. He replied May 18, 1893, substantially refusing to do anything further, and demanding that a receipt for the premium be sent him, or that his money be returned. This letter was received by the Wisconsin branch office on or before May 22, 1893, and by the home office May 24, 1893; but the money was not returned, nor -was any letter or communication of any kind sent to Easmusen, either from the home office or the Wisconsin office. Eas-musen died May 30, 1893. The vital and controlling question in the case is Avhether the company has, by its conduct, Avaived the forfeiture resulting from the failure to pay the premium due October 28, 1892.
It is well established that upon default in payment of the premium the policy did not become absolutely void, but voidable only at the election of the insurer. Webster v. Phoenix Ins. Co. 36 Wis. 67. Being put to its election as to Avhich course it Avould take when it received Easmusen’s money, it could not sleep upon its intention to avoid the policy, to the prejudice of the assured. Appleton Iron Co. *88v. British Am. Mss. Co. 46 Wis. 23. Two courses were open to it: It could declare the policy forfeited and return the money, or it'could keep the money and reinstate the policy; but it could not keep the money and still insist on the forfeiture. Especially could it not do this after receiving Ras-musen’s letter of the 18th of May, which was a distinct demand for a renewal receipt or- a return of the money. The duty of making an election became then immediate and imperative. All the essential facts were understood. The company knew that an act of forfeiture had taken place; fhat the insured declined to submit to a medical examination ; and that he had placed his money in their hands and demanded either reinstatement or the return of his money. These were all the facts which it was essential for them to know in order to act advisedly. It was not incumbent on the insured to state, in the absence of inquiry, the condition of his health. Rockwell v. Mut. L. Ins. Co. 27 Wis. 372.
The principle is familiar that if an insurance company receives and retains a premium, when it has knowledge of an act of forfeiture, until after a loss has occurred, it will effectually waive the forfeiture. So, in this case, if it had appeared without explanation that the insurance company silently retained Rasmusen’s premium after the receipt of the letter of May 18th, demanding a renewal receipt or the return of the money, from May 24th until after May 30th, when Rasmusen died, we apprehend there could be no question in the mind of any one but that the company had elected to receive the money and reinstate the policy. Authorities are not needed to sustain this proposition. Now, suppose it had appeared that the officers of the company, while retaining the money, still did not intend to keep it absolutely, but only until they had explained to Rasmusen the kind of a health certificate necessary, and further that, though they had ample time to make such explanation, they never did so, but remained silent and allowed Rasmusen *89to die with no knowledge of their philanthropic intention. Would the company’s election to keep the money and reinstate the policy be any less decisive because of the concealed intention? Wé think not. The case last supposed is substantially the case before us. The company retained- the money, as it now claims, for the purpose of giving • Eas-musen an opportunity to procure a proper health certificate; but they kept their ■ intention entirely to themselves and their physician at Hammond, and Easmusen died without any reply to his peremptory letter of the 18th of May,, and clearly entitled to believe that his money had been retained absolutely and his policy reinstated.
It is sometimes said that a waiver is a matter of intention, and does not occur unless intended. This is inaccurate, to say the least. Doubtless, the act out of ivhich the waiver is deduced must be an intentional act, done with knowledge of the material facts, but it cannot be necessary that there should be an intent to waive. Such a rule would allow a secret intention to defeat the legal effect of unequivocal and deliberate acts. 2 May, Ins. (3d ed,), § 508. In the present case we think that by intentionally and in silence retaining the delayed premium after receipt of the letter of May 18th, until after Easmusen’s death, when there was ample time to have returned it or communicated-its intention to Easmusen before he died, the company must be held to have ivaived the act of forfeiture and reinstated the policy.
There are no other questions in the case which are of importance enough to demand discussion.
By the Court.— Judgment affirmed.