trial of the action. The costs of this court will abide the event of the suit. All concur.
Bartholomew, J., having been of counsel, did not sit; Templeton, judge of the first judicial district, sitting by request.
W. E. Johnson, Plaintiff and Respondent, v. Dakota Fire & Marine Insurance Company, Defendant and Appellant.
1. Insurance—Limitation of Time to Bring Action On.
A stipulation in an insurance policy issued in Dakota territory, upon property therein, which limits the time within which an action may be brought upon the policy to the period of six months from the date of loss, is void. Such stipulation would be upheld at common law, but is void under the statute. § 3582, Comp. Laws.
2. Same—Statements Contained in Application Material.
Where a written application signed by the insured declared that "the statements made by me, and answers to questions above given, are true, and a warranty on my part, and are the basis upon which I ask hail insurance by the Dakota Fire & Marine Insurance Company on the crops herein described," and where the policy refers to such language as follows: "Assured’s application, of even number and date herewith, on file in the office of the company in Chamberlain, Dakota, is hereby referred to as a part hereof, and is a warranty on the part of the assured, and the basis on which this insurance is written"—and where the policy further declares "that any misrepresentation or false statement or concealment of facts in the application, or if the property is or becomes incumbered, shall operate to render the policy void"—held, that such statements, if not intrinsically material, have been made so by the express agreement of the parties, and such agreement must prevail, under Comp. Laws, § 4163, which provides: "A policy may declare that a violation of specified provisions thereof shall avoid it; otherwise the breach of an immaterial provision does not avoid the policy."
3. Same; Same—Error of Soliciting Agent Chargeable to Insurer; How Proved.
Where the agent who solicits insurance, either by his direction or act, makes out an application for insurance incorrectly, notwithstanding all the facts are stated to him truthfully by the applicant, the error or fraud will not defeat the policy, and is chargeable to the insurer, and not to the insured. Held, further, that parol evidence is admissible to show that the application was filled up by the agent, and that
