days in which proofs of loss should have been made, when the following correspondence was had: "ALBIA, IOWA, November 9, 1891. "J. H. Smith, President Farmers' Insurance Co., Cedar Rapids, Iowa: "Mr. Douglass Kirkman, hasband of Mrs. Ada Kirkman, informs me that, on the twenty-seventh of June last, Mrs. Ada Kirkman sustained a loss by fire of her property insured with your company by policy No. 178,879. He says he has given you notice of the loss, receipt of which was acknowl edged by you June thirtieth last. The policy was destroyed by the fire along with the property insured. The amount of the insurance was $425, which he claims his wife has sustained by the fire, and this amount he claims of your company as the damage due his wife on the policy. If the matter will be settled without suit, please inform me. If not, we desire suit to commence at once. Will you please furnish me a copy of his policy, the original having been destroyed in the fire, and he will pay the expense. "T. B. PERRY." "CEDAR RAPIDS, IOWA, 11-12-'90. "T. B. Perry, Albia, Iowa: 460 "As per your request of tenth inst., we herewith inclose you copy of policy issued to Mrs. Ada Kirkman, having date January 23, 1890, No. 178,879. No proof or affidavit of any loss sustained under this policy has been received by the company. J. H. SMITH, President." On the fifteenth day of November, 1890, plaintiff's counsel transmitted formal proofs of loss to the defendant, with a letter inquiring whether the proofs were satisfactory, and whether the loss would be paid. The defendant made no reply. It is claimed that the postal card was an implied waiver of proofs of loss, because it was stated therein that the matter would "receive prompt attention." We do not think that this was a waiver of any act necessary to be done by the plaintiff. It was surely not necessary that the answer to the notice of loss should call the attention of the insured to the plain provision of the policy that required proofs of loss within sixty days. The president of the company might well say that prompt attention would be given, without waiving any part of the contract. The postal card was nothing more than notice that the company would give 461 prompt attention in the performance of its contract. The correspondence which took place in November, as we view it, does not tend to prove a waiver of proof of loss. Plaintiff's counsel is a lawyer of undoubted experience and ability. He founds his claim of waiver upon the fact that the president of the company did not fully answer his letter. It is true, the answer did not state that the matter would not be settled without suit. But the furnishing of a copy of the policy was to enable counsel to commence the threatened suit, and the statement that no proof of loss had been made was not an intimation that, if it should be made after that, the time of making it would be waived. It was rather an intimation to the learned counsel that he would likely fail in sustaining an action. It is further claimed that one J. H. Stahl was an agent of the defendant, known as an adjuster of losses, and that within sixty days, and on the eighth day of July, 1890, he appeared upon the premises where the property which was destroyed was situated, and that in conversation with the plaintiff and her husband he waived proof of loss, and stated that the insured had done all that was required for them to do, and that the defendant would settle the loss in sixty days. There is some doubt as to whether there was evidence sufficient to authorize a finding that Stahl was an adjusting agent, or that he was clothed with power to waive any stipulation in the policy. This question we need not consider, because the policy in suit contains this provision: "It is expressly provided that no officer, agent, or employee of this company, or any other person, can in any manner waive any of the conditions, provisions, or requirements of this policy, except the secretary, and he only in writing hereon; and this policy is made and accepted on the above express conditions." There is no question as to the rights of the parties under such a contract as this. There is no statute of this state by which insurance companies are bound by all the acts of the agents which they send out to deal with the public, and the courts cannot say that a contract limiting the power and authority of agents is void. The plaintiff in this case must be held to have assented to this stipulation in the policy, and, for aught that appears, she is bound thereby: Zimmerman v. Home Ins. Co., 77 Iowa, 462 691; Cleaver v. Traders' Ins. Co., 65 Mich. 527; 8 Am. St. Rep. 908; Hankins v. Rockford Ins. Co., 70 Wis. 1. We have disposed of this question of waiver without determining whether the president of the company, notwithstanding the terms of the policy, had the power to make a valid waiver of its conditions. As we have said, we do not regard either the postal card or letter as evidence of a waiver. As to the declarations of the agent Stahl, it is clear from the above-named cases, and many others that might be cited, that he had no authority to waive proofs of loss. We think the motion to direct a verdict for the defendant should have been sustained. Reversed. INSURANCE-WAIVER OF CONDITIONS BY AGENTS.-Agents possessing merely the power to solicit insurance, deliver policies, and receive premiums cannot waive conditions and forfeitures: Viele v. Germania Ins. Co., 26 Iowa, 9; 96 Am. Dec. 83. See, also, Beebe v. Ohio etc. Ins. Co., 93 Mich. 514; 32 Am. St. Rep. 519, and note with the cases collected; note to Farnum v. Phoenix Ins. Co., 17 Am. St. Rep. 247, and the extended note to Farnum v. Phoenix Ins. Co., 17 Am. St. Rep. 248. INSURANCE-PROOFS OF Loss-FORFEITURE—WAIVER.-The cases dis. cussing this subject will be found collected in the notes to Enos v. St. Paul etc. Ins. Co., 46 Am. St. Rep. 813, and Firemen's Ins. Co. v. Floss, 1 Am. St. Rep. 405. INSURANCE-WAIVER OF PROOFS OF LOSS BY ACT OF ADJUSTER.-The refusal by an insurance adjuster, with the approval of his company, to settle a loss, coupled with his declaration that it will not be paid, constitutes a waiver of preliminary proofs of loss: Hahn v. Guardian Ins. Co., 23 Or. 576; 37 Am. St. Rep. 709. When an adjuster for an insurance company demands further proofs of loss, in addition to those furnished, with full notice that they cannot be obtained until long after the time within which suit is required by the policy to be brought, under a condition in the policy, the latter condition will be deemed to have been waived by the insurer: Dibbrell v. Georgia Home Ins. Co., 110 N. C. 193; 28 Am. St. Rep. 678, and note. RICHARDS V. PURDY. [90 IOWA, 502.] USURY.-BURDEN OF PROOF is on a party setting up the defense of usury. USURY-NOTE FOR COMMISSIONS.-A loan negotiated by an agent for both parties, and bearing legal interest on its face, is not rendered usurious by the act of the agent in taking a commission note for his services pay. able to the lender, thus raising the total interest above the legal rate, provided the lender neither authorizes nor ratifies the act of the agent. R. M. and J. B. McCrary, for the appellants. J. C. Kerr, for the appellee. 503 ROBINSON, J. On the twenty-fourth day of February, 1886, the defendants, H. E. Purdy and Kitty Purdy, his wife, made to George L. Richards, as payee, their three promissory notes, of which one was for the sum of two hundred dollars, payable in one year, one was for the sum of five hundred dollars, payable in two years, and one for the sum of one thousand dollars, payable in three years. They bore interest at the rate of eight per cent per annum, and were secured by a mortgage on a quarter section of land, and a mortgage on certain horses and on other personal property. On the eighth day of March, 1887, the defendants made to the same payee their promissory note for four hundred dollars, payable on the eighth day of June, 1887, with interest thereon at the rate of ten per cent per annum, and, to secure its payment, executed a mortgage on a lot in the town of Rockwell. The payment of interest on the notes for five hundred dollars and one thousand dollars to August 24, 1890, and on the four hundred dollar note to December 8, 1890, is admitted by the plaintiff. The two hundred dollar note has also been paid. This action was brought to recover the amount due on the three notes last described, and for the foreclosure of the mortgages on the land and lots. The defendants admit that they made the notes, but allege that the three notes first given were usurious; that the consideration for them was but thirteen hundred dollars in money borrowed of E. A. Richards; 504 that the notes were owned by him, but, to enable him to take the acknowledgments of the mortgages, the notes were made payable to his brother, George L. Richards; and that the agreed rate of interest was eighteen per cent per annum. The defendants further claim that the property included in the chattel mortgage has been sold, and that the proceeds thereof have been, or should be, applied in paying the two notes in suit first given, and that those notes have been fully paid. The defendants allege that they have paid large sums on the note last given, and demand an accounting of the money paid to George L. and E. A. Richards. The district court found that there was due on the notes in suit the sum of two thousand one hundred and seventy-three dollars and fifty-five cents, and rendered a decree in favor of the plaintiff for that amount, with attorneys' fees and costs, and for the foreclosure of the mortgages. 1. When the notes in controversy were given, George L. Richards was a nonresident of the state, and the business involved in taking them was transacted for him by his brother and agent, E. A. Richards. H. E. Purdy testifies that when 505 the papers given in February, 1886, were drawn, he was told by E. A. Richards that the money to be loaned belonged to him, but that he did not wish his business known in the town, and could not take the acknowledgments of papers executed to himself, and therefore the notes and mortgages were nominally made payable to his brother. The testimony of Purdy in regard to the matter is in some respects improbable, and is contradicted by E. A. Richards. We are satisfied that the money loaned belonged to George L. Richards. The claim of Purdy that he received but thirteen hundred dollars for the three notes first given is not sustained by the record. It is quite satisfactorily shown that he received fifteen hundred dollars, and that the two hundred dollar note was given to E. A. Richards as his commission for securing the loan, and made payable to his brother only as a matter of convenience, to have it secured by the mortgages. It is said that the knowledge of the agent is the knowledge of his principal, and that by accepting the notes the latter ratified the acts of the agent in taking the commission note, and that the transaction was thereby made usurious. It appears, however, that E. A. Richards was also the agent of the borrower, for the purpose of obtaining the loan; and it is not shown that E. A. Richards authorized the charge for commission, or that he knew of it. The notes for five hundred dollars and one thousand dollars were sent to him, but the two hundred dollar note was not. Whether he ever saw the mortgages does not appear. The burden is on the defendants to show usury; and, under the rule announced in Greenfield v. Monaghan, 85 Iowa, 211, they have failed to do so. 2. It is claimed that due credits for the payments made on the notes have not been given. So far as the claim relates to the notes for five hundred dollars and one thousand dollars, it is not shown to be well founded; and we think the amount allowed on account of them, to wit, seventeen hundred and fifteen dollars and eighty cents, was authorized. In regard to the four hundred dollar note, it is alleged, and the evidence shows, that the rents derived from the lot mortgaged to secure it were paid to E. A. Richards to be applied in paying the note. He was the agent of his brother to receive payment, and was paid one hundred and twenty-six dollars of the rents, to be so applied; but although his attention, as a witness, was particularly called to that matter, he accounted for only forty dollars and seventy-five cents of the money so |