Opinion by
This appeal is from the refusal of the court below to take off a judgment of nonsuit. The policy of insurance on which the suit is founded recites that “ in consideration of the answers and statements in the printed and written application for this policy, all of which are hereby made warranties and are hereby made part of this contract, .... and in consideration of the payment of certain premiums .... subject to the conditions set forth below and on the reverse side hereof, each and all are made part of this contract, .... the company agrees to pay the sum of etc., .... provided, however, that no obligation is assumed by this company prior to the date hereof, nor unless on said date the insured is alive and in sound health.” By condition sixth it is provided that “proofs of death under this policjr shall be made upon blanks to be furnished by the company, and the proofs shall contain answers to each and every question propounded in such blanks to the claimant, physicians, and other persons to whom such questions shall be propounded. . . . All the contents of such proof of death shall be evidence of the facts therein stated in behalf of, but not against, the company,” and the seventh condition provides that “no suit shall be brought against this company under this policy, until ten days shall have expired after the filing in the home office of proofs of death upon all the forms furnished by the company. . . .”
On the trial of the case it was apparent that proofs of death
The objection to the offer was that it showed there was no waiver of proofs of death, but on the contrary, that proofs had been furnished which were satisfactory. (1st assignment.) The facts stated in the offer do not show a waiver of any condition in the policy, nor is there evidence of an intention to waive any of these conditions. Treating the case as presented by each side, — that the proofs of death were not in evidence, — the nonsuit was properly entered. The plaintiff cannot repudiate the proofs of death furnished to the company and at the same time urge that proofs of death were waived. To support a waiver there must be both a knowledge of the existence of a right and an intention to relinquish it. No intention to waive can be implied from the assertion that satisfactory proofs of death had been furnished, and that they were tendered by the defendant to the plaintiff in open court in response to a notice to produce them. The plaintiff elected to rest his case upon the ground that compliance with the condition had been waived, but he failed to show that his prerequisite to a recovery had been waived by any competent authority.
The third specification of error cannot be considered for the reason that no exception was taken to the ruling of the court excluding the offer.
The first reason for the nonsuit was sufficient to support the judgment, which is affirmed. *