The Montgomery advertiser., 1903-01-16

sured was described as ',consis prif1. cipally of confectionaries, liquors, cigars, tobacco, toys and such other merchan- disc usually kept in similar stocks and that the agent who procured the splaint- iff's application for insurance and issued the policy upon being asked if the keep ing of gasoline was covered by the ex- precision usually kept in similar stocks,'' replied that it was, does not present an answer to said plea; and the facts averred in said replication constitute no estoppel against the defendant setting up the for feiture of the policy. the statement of the agent being merely his opinion as to the meaning of the clause in the policy, the meaning of which was equally open to the plaintiff and said agent and not being the representation of any fact whereby the plaintiff was misled.
 5. Same; same.--In such an action, a replication which, after averring the de- scription of the stock of goods insured as set out above. then ayers "that gas oline is usually kept with the class of goods" as described In said policy, is bad and presents no answer to the plea. said replication not averring that gasoline was so kept as . part of the stock of mer- chandise insured by the plaintiff,
 6. Fire insurance; waiver of forfeiture; authority of agent: notice.-The agent of fire insurance company, who is only authorized to solicit, and take applica- tions for insurance, and deliver the pol icy and receive premiums, has no author ity to waive the conditions or stipula- tons of the policy. providing against the increase of the hazard and prohibiting the keeping of gasoline upon the prem ises wherein the property insured is sit- uated, nor is notice 10 such agent of the increase. of the hazard by the keeping of gasoline on the premises insured notice thereof to the company; and. therefore, the notice to such agent subsequent to the issuance of the policy, that gasoline was kept on the premises by the insured. and ~the failure of the insurance com pany to cancel said policy do not cousti- tute waiver of the stipulation prohibit ing 1t.
 2. Same; same; same.--where, at the time of making an application for insur- ance upon stock of goods, the insured notified the agent of the insurance com pany who issued the policy that he (the insured) was then keeping. and intended to keep. gasoline in his stock, and that with this knowledge the agent issued the policy and told the insured that 1t would be all right for him to keep gasoline in his stock, the issuance of the policy and the acceptance of he premium by the agent, constitute waiver of the right of the insurance company to claim for feiture of the policy. by reason of the insured keeping gasoline in the stock of goods insured, in violation of an express ed stipulation of the policy prohibiting the keeping of gasoline in the stock in- sured.
 8. Action upon insurance policy; sum- ciency of replication.-In an action on a fire insurance policy to recover for the loss of stock of goods destroyed by fire, where the defendant sets up by special pleas that the plaintiffs rights under the policy had been forfeited by reason of the plaintiff keeping in his stock of goods a large quantity of gasoline contrary to the stipulations of said policy a replica ton to such special pleas. which ayers that said stipulation referred to was a printed portion of said policy, and that said stipulation was, in fact, waiL ed by the defendant at the time of the issuance of the policy sued upon and subsequently and prior to the loss and destruction by fire, and while said policy was in full force and effect"
 g. Insurance; waiver of forfeiture; when shown.-When a fire insurance pUl- icy contains stipulation that it shall be void if the insured keeps, uses or al- lows on said premises any gasoline with out the written consent of the insurer, If before the loss of the property insured the company has knowledge or notice of the violation of this stipulation of the in- sured and fails for a reasonable time to assent to the forfeiture therein pro- vided for, such failure constitutes waiver of said forfeiture clause contained in the policy.
 Reversed and remanded. Opinion by Dowdell, J.