By the twentieth article of the by-laws of the corporation, by which the rights of the parties under the contract are regulated, it is provided that, before the policy shall be delivered, the assured shall pay such premium and give such deposit note as the president and directors shall determine. The effect of this stipulation was, that the contract of insurance should not be completed nor the policy take effect until such premium was paid and such note given. It is admitted in the present case, that the assured had not complied with this by-law.
The plaintiff however seeks to avoid the effect of such noncompliance, and to maintain the policy as a valid contract, on the ground that this stipulation in the by-laws for the payment of the premium had been waived by the officers of the company. On looking into the evidence, which is fully reported in the exceptions, it does not appear that there was *209any proof of waiver by the corporation. The case therefore comes directly within the recent decision of this court in Hale v. Mechanics’ Mutual Fire Ins. Co. 6 Gray, 169. The president, secretary and board of directors were all special agents, with limited powers, and had no authority to dispense with the bylaws. Those could be changed only in pursuance of the twenty second article, at an annual meeting, or at a legal meeting of the company called for the purpose, by a vote of a majority of the members present.
The decisions cited by the plaintiff’s counsel, in which the doctrine of waiver has been applied to contracts of insurance, and it has been held that the officers or agents of corporations might alter or dispense with the stipulations contained in the contract, are cases where the policies have been issued by companies organized with a capital stock, divided into shares and represented by a general agent or officer. But such decisions do not apply in a case like the present, where the policy is issued by a company established on the mutual principle, in which the by-laws are made to fix and regulate, by the same stipulations in every policy, the rights of all the assured alike, and the assured are themselves members of the company and as such have notice of every provision contained in their by-laws.
There is also a class of cases in which it has been held that companies established on the mutual principle may be bound by the acts of their officers in waiving the formalities of preliminary proof of loss as required by the by-laws. But those cases are distinguishable from the present. Such stipulations do not touch the substance or essence of the contract, or affect its validity, but relate only to the form or mode in which the liability of the company shall be ascertained and proved. Besides, such preliminary proof must be necessarily submitted to the officers of the corporation," who must pass on its sufficiency, and it therefore comes within the scope of their authority to say whether proof of the loss is sufficient.
jExceptions sustained.