czlrrsmr v. Joniv HANCOCK MUT. urn INS. oo. 29
of his death were given by the plaintiff to the defendant. No fur-
ther payment of premium was made by the plaintiff. Except paying
the premium, all conditions of the policy were fulfilled by the plain-
tiff. The court said:
"The parties agree that if the court shall hold that the Massachusetts stat-
ute of 1861, c. 186, applies to the contract made between the plaintiff and the
defendants, then judgment shall be rendered in favor of the plaintiif for the
sum of $925, with interest; otherwise the judgment shall be for the plaintiff
in the sum of $85.98, with interest from the same date. * * * Nothing
is contained in the statute to indicate that the legislature intended to with-
draw the clear right which the insured had, outside the statute, to waive the
non-forfeiture provision if the other party consented, and to accept a differ-
ent stipulation, of a more favorable character, in lieu of the same. * * *
By the express terms of the contract the insured was at liberty to omit pay-
ing the premiums at the times and place mentioned in the policy, and in that
event the policy did not become forfeited or void, but became a paid-up pol-
icy for the amount, proportioned to the premiums previously paid. Fifty
dollars it is stipulated shall be paid in that event for every annual premium
previously paid in fulfillment of the contract between the parties, which, as
the plaintiff contends, tends strongly to show that the policy did not become
forfeited, and the case does not fall within the said Massachusetts statute.
* * * Cases often arise where a party is at liberty to waive statutory pro-
visions in his favor, aud Mr. Sedgwick lays it down, as a general rule, that
where no principle of public policy is violated, parties may waive the provis-
ions of a statute which, if fulfilled, would operate in their favor, and that
proposition is fully sustained by many other authorities. * * * When the
parties undertake in the policy itself to declare the meaning and effect to be
given to its stipulations, they have a right to do so, except in cases where
there is some provision in the statute to indicate an intention on the part of “
the legislature to control the action of the parties in that respect. There is
nothing of the kind contained in the original act referred to, as it is plain
that its terms do not apply to any other than Massachusetts corporations."
The court held that the provisions of the statute might be waived.
‘ We think it a strong authority for the proposition contended for,
although the case went off upon the ground that the act only applied
to Massachusetts corporations.
The case of Farmers` di Dr0z:crs’ Ins. Oc. v. Curry, 13 Bush, 312,
also holds that the statute providing that "al1 statements and de- `
scriptions in any application for the policy of insurance shall be
deemed and held representations and not warranties," does not pre-
vent parties from contracting that such statements and descriptions
shall be considered part of the contract, and warranties Ly the as-
sured, and that any false representations by the assured of the con-
dition, situation, or occupation of the property shall render the pol-
icy void. The case holds, substantially, that a statutory provision of
that kind may be waived. That this was also the construction given
tothe statute by the Massachusetts legislature is evident from the
subsequent Acts of 1881, c. 63, § 1, and 1882, c. 119, § 161, in both
of which it was expressly provided that any waiver by the assured of
the benefits of the act should be void. If the legislature had consid-
ered that the provisions of the prior act could not be waived, this
clause would be entirely nugatory.