The opinion
Pee Cubiam,
Tbe express condition of tbe policy is that no renewal of it shall “ take effect unless the premium is actually paid previous to any accident under which claim is made.” It is admitted that the renewal premium was not paid until after the accident, but appellant claims to go to the jury on the question of waiver. The cases on this subject have been exceedingly liberal in favor of tbe insured, but none of them go as far as we are asked to do here. Tbe underlying element which opens the question of implied waiver to the jury is that the insurer has done some act or pursued some course of conduct which tended to mislead the insured, or to lull him into delay in performing his stipulations in the contract. There is nothing in this case that can by any fair inference amount to proof of a waiver. The question asked of the agent was not whether it was a custom of the company to give credit for premiums, but whether the agent had not told certain witnesses that he had himself given credit in certain cases. This is far short of proof of a custom which would bind the company on the ground of waiver of the conditions of the policy, but even if it had a fair tendency to show such custom, it would not avail the plaintiff in the face of the positive and uncontradicted testimony that the insured knew his premium was overdue and unpaid, promised to pay it on the next Monday, and was distinctly informed that in the meantime until he paid cash, he would be “ carrying his own risk.”
Judgment affirmed.