Roosevelt v. Roosevelt. being the sum which the property has cost the trust estate. The objection is urged that the trustees were careless, and guilty of unnecessary delay in not proceeding promptly to foreclose the mortgage, and thereby suffered a loss in interest and rents which could have been collected. The earliest day when the mortgage became due by reason of default was March 15, 1877. The most satisfactory and conclusive reasons appear from all the evidence in the case why such delay was had. The trustee, in my judgment, would have been acting in disregard of his plain duty and against the true interest of the estate, had he not exercised his sound discretion in negotiating for the sale of the premises upon the footing of reducing the amount of the mortgage which was the chief occasion of the delay complained of. The difficulties encountered by the attorneys having the foreclosure in charge are a sufficient answer to the objection made in this respect. As before stated, the testator wisely conferred upon the trustees a large discretion, and the only question is, did they discharge their duties wisely, with fidelity and prudence. That they have done so, I think, cannot be well questioned, and they should not be held for losses. I do not agree with defendant's counsel that because the plaintiff appeared on the accounting in the surrogate's court by counsel, and that the investment in question was not made in the plaintiff's trust until after the decree was entered, it was therefore by his consent, and that he cannot afterwards question it. The questions in issue here were not raised in the surrogate's court, nor could they be; but I see no reason why the fact that this property, which was appraised by sworn appraisers in the surrogate's court, should not be received as some evidence, at least, of its real value, especially as it was about the time the bond and mortgage was Redfield v. Paterson Fire Ins. Co. assigned to the trustees, and held by them on the plaintiff's trust. It is contended by plaintiff's counsel, that if it be true that the property even now be worth more than the principal, interest and taxes, then the court has the power to decree that the defendant keep the property and make the plaintiff's estate good for the deficiency. This might be done if the defendant had not exercised a sound discretion, and had not acted in good faith since the investment was made, and had been careless and imprudent, and guilty of negligence. If, on the other hand, he has complied in all respects with the settled rule in equity in the administration of the trust, it necessarily follows that the trustee should not be held liable for losses, casualties and misfortunes which ordinary sagacity could not prevent. I therefore think the defendant should have judgment. REDFIELD v. PATERSON FIRE INSURANCE COMPANY. City Court of Brooklyn; General Term, June, 1877. FIRE INSURANCE.-CONDITIONS IN POLICY.-CREDIT FOR PREMIUM.— CANCELLATION OF POLICY FOR NON-PAYMENT OF PREMIUM.—WAIVER. Where a policy of fire insurance expressly provided that unless the insured paid the premium within thirty days from the date of the policy, the insurer should be discharged from liability:-Held, that the policy might be canceled by the insurer after the expiration of thirty days, without notice to the insured. The rule which requires a demand in certain cases to work a forfeiture of an estate in land, does not apply to contracts of this nature. One obtaining a policy of insurance in a foreign company having no office in this State, with a clause forfeiting the policy unless the premium is paid in a certain time must go to the company or its Redfield v. Paterson Fire Ins. Co. duly commissioned agent, and make the payment within the time specified, to prevent a forfeiture. The fact that the company had received premiums from other insured persons after the limited time and waived the forfeiture, does not bind it to do so in every case. Appeal by defendant from a judgment in favor of the plaintiff. The action was brought by Luther Redfield, as assignee of the firm of C. H. McCormick & Co. Plaintiff's assignors employed one Stearns, an insurance broker in the city of New York, to procure for them an insurance upon property in New Jersey. Stearns applied to the defendant, a company organized and doing business in that State, and having its office at Paterson. The policy was issued Oct. 23, 1875, and was mailed at Paterson, directed to Stearns in New York city, who received and delivered it to the insured at the latter place. The policy contained this clause, "and this company shall not be liable by virtue of this policy, or any renewal thereof, unless the premium therefor be actually paid to them or to their duly commissioned agent, within thirty days from the date of the policy or renewal." The loss occurred on January 21, 1876, up to which time no attempt had been made to pay the premium. On that day, the insured paid the amount of premium to Stearns, who, in ignorance of the fire, received it, and the next day transmitted a check for the amount of that and another premium, to the office of the company. The secretary of the company immediately returned the check to Stearns, stating that this policy had been canceled for non-payment of premium. It was, in fact, so canceled on the books of the company on January 3. The jury having given a verdict for the plaintiff, the defendant appealed. Redfield v. Paterson Fire Ins. Co. Preston Stevenson, for defendant, appellant.—The broker was the agent of the assured (Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 609; Rohrback v. Germania Ins. Co., 62 Id. 62; Alexander v. Germania Fire Ins. Co., 66 Id. 464). But if he be deemed, for any pur poses, the agent of the insurer, he had no authority to waive any of the terms of the policy, and the insured, being informed of the want of authority of any agent of the company by the terms of the policy itself, are estopped to plead any waiver by the agent (Wilson ʊ. Genessee Ins. Co., 14 N. Y. 418; Merserau v. Phoenix Mut. Life Ins. Co., 66 Id. 274; Wall v. Home Ins. Co., 8 Bosw. 597; affi'd 36 N. Y. 157; Security Ins. Co. v. Fay, 1 Ins. Law Journal, 203; Chase v. Hamilton Ins. Co., 22 Barb. 532; Van Allen v. Farmer's Joint Stock Ins. Co., 5 Ins. Law Journal, 729; Thayer v. Agricul tural Ins. Co., 5 Hun, 566; Bush v. Westchester Ins. Co., 5 Ins. Law Journal). Whatever the prior acts of the company with Stearns, the insured had no knowledge of them, and, even if they had, it could not affect the express terms of the policy (Wood v. Poughkeepsie Ins. Co., 32 N. Y. 619). If he be regarded as the agent of the insurance company, no evidence of prior or contemporaneous usages or statements is admissible, even between the same parties, to alter the terms of the written contract which the parties have themselves agreed upon (Baptist Ch. v. Brooklyn Ins. Co., 28 N. Y. 153; Richards v. Millard, 56 Id. 582; Ross v. Ackerman, 46 Id. 210; Pindar v. Resolute Fire Ins. Co., 47 Id. 117; Angell on Ins., §§ 20, 21; Philips on Ins., §§ 122, 133, 145; M. S. I. Co. v. Howe, 2 Comst. 235; and see 1 Hall, 108; 4 Ins. Law Journal, 582; 3 Id. 778; 2 Hall, 632; 1 Johns. 433; 3 Id. 1; 36 Md. 398); or to prove a waiver of the express terms of the contract (Ills. Ins. Co. v. O'Neill, 13 Ill. 89; Howell v. Knick. Ins. Co., 44 N. Y. 276). Nor can these dealings operate in favor of the plaintiff by way Redfield v. Paterson Fire Ins. Co. of estoppel (Reynolds v. Lounsbury, 6 Hill, 534; Pennel v. Hinman, 7 Barb. 649; Chatauqua Co. Bank v. White, 6 N. Y. 236; Jackson v. Brinckerhoff, 3 Johns. Cas. 101; Strong v. Strickland, 32 Barb. 284; Mayenberg v. Haines, 50 N. Y. 675). An estoppel is never presumed, it must be clearly made out (Dezell v. Odell, 3 Hill, 215; Baker v. Union M. Ins. Co., 43 N. Y. 289; Security Fire Ins. Co. v. Fay, 1 Ins. Law Journal, 203; Carpenter v. Stillwell, 11 N. Y. 72-74, and cases cited; Brown v. Bowen, 30 Id. 541; Otis v. Sill, 8 Barb. 102). Even if it be admitted that constructively the insured had knowledge of these dealings of the defendant with other parties, through the knowledge of Stearns, yet it must be shown affirmatively that the insured had a right to act and really acted from or was prejudiced by such a knowledge before any estoppel in pais can be claimed (Malony v. Horan, 12 Abb. Pr. N. S. 289; Jewett v. Miller, 10 N. Y. 402; 4 E. D. Smith, 296; Ackley v. Dygert, 33 Barb. 176; Lawrence v. Brown, 5 N. Y. 394; Frost v. Saratoga M. I. Co., 5 Den. 157, and cases cited). The contract was a valid one, with a defeasance clause. The parties had a right to make such a contract as they pleased, and it bound them to strict performance of the conditions. Upon failure of the insured to perform the conditions as to payment, the policy immediately became of no obligation upon the insurers (Savage v. Howard Ins. Co., 52 N. Y. 502; Williams v. P. F. Ins. Co., 57 Id. 274; Mead v. N. W. Ins. Co., 7 Id. 535, 536; Germond 7. Home Ins. Co., 2 Hun, 540; Beadle v. Chenango Ins. Co., 3 Hill, 161; Wall v. Home Ins. Co., 8 Bosw. 597; Baker v. Union Mutual Ins. Co., 43 N. Y. 283; Roehner v. Knick. L. Ins. Co., 63 Id. 160; Nedrow v. Farmers Ins. Co., Sup. Ct. of Iowa, 1876, 2 L. & E. 50; Schultze v. Hawkeye Ins. Co., 5 Ins. Law Journal, 354; Garton v. Dodge Co. Ins. Co., Id. 350). The common law rule as to non-forfeiture of estates |