28 FEDERAL REPORTER.
such agreement, and hence none is admissible. In this connection
_ she relies upon the seventeenth rule of the circuit court, which pro-
vides that "in case the company or person issuing such policy shall
rely, in whole or in part, upon the failure of the plaintiff to perform
or make good any promise, representation, or warranty not contained
in such policy, but set forth in any other paper or instrument in the
hands of said insurer, the notice under the general issue shall declare
the same, and indicate the breach relied on." We are clearly of the
opinion this rule does not apply to this case, as the defendant offers
the application, not for the purpose of showing that the plaintiff has
been guilty of a breach of warranty, but to prove what the contract
actually was. In such case the general rule applies that all papers
executed at or about the same time are admissible to show the whole
agreement between the parties. The parties are not limited to any
one agreement under the rule, but all contemporary documents may
be admitted to show the entire agreement.
Second. That the application in question is no part of the contract
sued upon, as it is in no way referred to in the policy. This objec-
tion is covered by the remark already made that all contemporaneous
papers are admissible to show the contract between the parties.
Third. That it cannot bind Mrs. Caffery, who never heard of it,
and whose rights were nxed at the time the policy issued. We un-
derstand the rule to be that when the policy has once issued and
taken effect, no agreement can be entered into between the insurance
company and the person whose life is insured to the detriment of
the beneficiary under the policy, but that the beneficiary is bound
by the contract entered into between the assured and the company.
While she cannot be prejudiced by subsequent agreements, she is
bound by whatever covenant or agreement was entered into at the
time the policy was issued.
Fourth. The law was for the benent of the insured, and by its very
terms the insured could not waive this benefit. The insurer must
` pay the loss if the policy was in force as provided by the statute,
anything in the policy to the contrary notwithstanding. We think,
however, that a party may waive the benefit of this statute. The
words "anytl1ing in the policy to the contrary notwithstanding," in
our opinion, were intended to apply to the ordinary forms of policies,
which provide that there shall be a forfeiture if the premium be not
promptly paid; but if the parties choose to adopt any other form of
policy which shall be non-forfeitable, we think it within their power
to agree that this form shall be substituted for the statutory form,
and that the statute may thus be waived by the express agreement
of the parties.
This question came before Mr. Justice Cmrroiw in the case of
Desmazes v. Mzetzral Ben. L-ye Ins. O0., 7 Ins. Law J. 926. Des-
mazes, the husband of the plaintiff, died in 1876, after payment of
the first premium and part of the second, and due notice and proof