Prudential Ins. Co. v. Sullivan. ment that the policy should not be in force until actual delivery to the insured. We see no valid reason why the effectiveness of such an agreement made without fraud should be denied, if the parties deem it convenient to enter into it. Pino v. Merchants, etc., Ins. Co., 19 La. Ann. 214, was an action on a fire policy, the premium not having been paid and the policy not having been delivered until after the loss. The policy contained a condition that no insurance, original or continued, should be considered as binding until the actual payment of the premium. It was held that this condition being a stipulation in the insurance company's own interest, it had a right to waive it, that parol evidence was admissible to prove the waiver, and that such proof of waiver did not vary or contradict the written contract. In Young v. Hartford Ins. Co., 45 Iowa 377, the policy sued on provided that the insurer should not be liable until actual payment of the premium, and that no officer, agent or representative of the company should be held to have. waived any of the terms and conditions of the policy, unless such waiver should be indorsed thereon in writing. It was held to be competent for a general agent of the company, at the time of the application for insurance when he agreed to issue the policy, to agree by parol to extend the time for the payment of the premium and to give the insured credit until the stated time for the premium and to promise that the policy should take effect from its date, and that the fact that the agent failed to indorse the waiver upon the policy would not prevent a recovery thereon. In Insurance Co. v. Colt, 20 Wall. 560, the agents in Connecticut of a Pennsylvania insurance company, made a parol contract of insurance, the insurance to be binding on and from the date of the parol agreement, at a premium then agreed upon, credit for which was given by the agent until a date some months later, and it was agreed that the policy to be made should be kept by the agent till the date for the payment of the premium, for the convenience of the Prudential Ins. Co. v. Sullivan. insured. The property having been destroyed by fire after this parol agreement and before the policy had been made out, the agent then filled up a blank policy properly signed and countersigned, which he, upon tender of the premium, refused to deliver to the insured, but returned to the insurance company. A recovery at law upon the policy was affirmed. A provision in a policy of insurance that no agent of the insurance company except its principal officers shall have power to waive or modify any condition of the policy, may itself be waived by the insurer and by the language and conduct of its agents having apparent authority to bind it. Phenix Ins. Co. v. Caldwell, 187 Ill. 73. In United States Ins. Co. v. Lesser, 126 Ala. 678, 28 South. 646, it was held that the condition of a policy restraining the power of agents "to alter or waive any contract or condition on behalf of the company," was a condition reserved for the benefit of the company, of which it could take advantage, or which it could waive, and it could delegate to agents the implied power vested in the president in conjunction with the secretary or actuary. It was also held that a local agent, having been entrusted with the collection of the renewal receipt for the premium, could waive payment of the premium on the day appointed, deferring it until the return of rewritten policies from the home office in New York, or until there was a refusal to rewrite, of which the assured had notice. The decisions in our own courts uphold the action of the court below. Where there has not been either payment of the advance premium as required by the policy or delivery of the policy to the insured, it requires strong proof, it has been said, to show a binding contract. See Union Central Ins. Co. v. Pauly, 8 Ind. App. 85. The right to declare a forfeiture of a policy for the nonpayment of premiums may be waived, and the waiver may be manifested by conduct as well as by words. Phenix Ins. Prudential Ins. Co. v. Sullivan. Co. v. Tomlinson, 125 Ind. 84, 21 Am. St. 203, where the following is quoted from Titus v. Glens Falls Ins. Co., 81 N. Y. 410: "But it may be asserted broadly that if, in any negotiations or transactions with the insured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is as a matter of law waived;" etc. An action may be maintained upon a policy of insurance which was not issued and the premium therefor was not paid until after the loss, if the contract of insurance contained in the policy began to run before the loss. American Horse Ins. Co. v. Patterson, 28 Ind. 17. The delivery of the policy by the insurer to the insured is a waiver of a condition for the delivery of a premium note before the taking effect of the policy. Behler v. German Mut. Ins. Co., 68 Ind. 347. In Phoenix Ins. Co. v. Hinesley, 75 Ind. 1, an action on a life policy, it was held to be competent for the parties to the policy by their conduct and agreement to modify or change its terms in regard to the payment of the annual premium, both as to the amount and the time of such pay ment. A general agent of a foreign insurance company, having authority, may waive a condition in the policy that the premium shall be paid in money. Willcuts v. Northwestern Ins. Co., 81 Ind. 300. In that case it was held that an insurance company might waive stipulations in the policy as follows: "Agents having the receipts, and then only, will receive the premiums when due or before; but agents are not authorized to waive forfeitures, to make, alter or discharge contracts; and no receipt will be binding on the company unless signed by one of its officers, and countersigned by the agent. No agent has authority, in any case, to waive or postpone payment of premiums, and the assured is hereby notified that the only evidence to him of the authority of Prudential Ins. Co. v. Sullivan. an agent to receive any premiums on account of this policy is a receipt in printed form, signed by the president or secretary of the company." In Home Ins. Co. v. Gilman, 112 Ind. 7, it is said to be well settled that payment of the premium in cash may be waived by an agent authorized to deliver policies and receive payment, notwithstanding a stipulation in the policy to the contrary; and that unless a policy so delivered is avoided by showing bad faith or collusion, it is enforceable; also, that if credit has been extended by the agent to the assured, it is a sufficient payment to the company to support the policy. In Terry v. Provident Fund Soc., 13 Ind. App. 1, it was said that when the company, which did not deny the execution of the policy under oath, recognized the regularity of the application and legitimacy of the channel through which it came, it placed the solicitor of the insurance who took the application upon the same foundation with other agents for soliciting and contracting for insurance, and was bound by his waiver of the condition that the advance premium must be paid at the home office. In Kerlin v. National, etc., Assn., 8 Ind. App. 628, 635, it was said that, "if, at the time the application is made, or the insurance is contracted, circumstances or conditions exist which are in conflict with the terms and conditions of the application or policy, and the agent of the company knew of their existence, 'and agreed that as to them the conditions' of the application should not be effective, the insurer can not take advantage of their existence to defeat a recovery after loss has occurred." The appellant, under its assignment that the court erred in overruling its motion for a new trial, has presented argument upon the court's refusal to give certain instructions and upon the admission of certain evidence over objection, and upon the question as to the sufficiency of the evidence to sustain the verdict. A record entry shows that upon the 4th. Prudential Ins. Co. v. Sullivan. day of December, 1899, the appellant filed "its bill of exceptions number two, which is in the words and figures following, to wit." Immediately thereafter in the transcript is a bill of exceptions containing the instructions given and those refused, and the shorthand reporter's longhand report of the evidence, which at the close thereof, after the reporter's certificate, is said to have been tendered to the judge on the 6th of October, 1899, which was within the time granted by the court when it overruled the motion for a new trial; and it purports to have been signed by the judge on the 2nd of January, 1900. Afterward in the transcript, some blank leaves intervening, there is a record entry under date of January 2, 1900, as follows: "Now here comes the defendant by counsel and files its bill of exceptions herein." In the clerk's certificate at the close of the transcript it is certified that the bill of exceptions number two, set out in the transcript, is the original bill of exceptions number two in the cause. An original bill of exceptions can not present to this court instructions to the jury, given or refused; and if the bill can be treated as in the record it can not be regarded as bringing up more than the evidence and the rulings on the trial relating to the introduction of evidence. Leach v. Mattix, 149 Ind. 146; City of New Albany v. Lines, 21 Ind. App. 380, 391; Acts 1897, p. 244, §650a Horner 1897, §638a Burns Supp. 1897. Furthermore, a bill of exceptions can not be regarded as properly before us when it does not affirmatively appear from the record that it was filed in court or in the clerk's office after it was signed by the judge. Section 641 Burns 1894, §§629, 650a Horner 1897, §638a Burns Supp. 1897; Denman v. Warfield, 20 Ind. App. 664; McCormick, etc., Co. v. Smith, 21 Ind. App. 617, and cases cited. In the transcript before us it does not affirmatively appear that the bill containing the evidence was filed after it was signed. That which is called bill of exceptions number two was not in truth a bill of exceptions when it was filed on the |