notes; and if you believe, from a preponderance of the evidence, the plaintiff was fully informed and cognizant of all the facts and circumstances attending the transaction between defendant and Beck, and that he, by his acts, declarations, or conduct, intentionally waived to the defendant his rights to receive commissions on the amount of said notes surrendered, and also that the plaintiff had full knowledge of his rights in this respect, then the plaintiff can not recover, and your verdict should be for the defendant."

The question of the plaintiff's knowledge or ignorance in the matter is involved. If the plaintiff was ignorant of the fact that he was entitled to his commission at the time and after the defendant purchased the surrender of the policy, and did not intentionally waive his right therein after full knowledge, he was entitled to recover. This is so because a waiver is an intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it. The waiver, if any, was a question of intent on the part of the plaintiff. Knowledge of the rights he had, and an intention to waive such right should be made. plainly to appear before a court or jury would, in such a case as this, be justified in declaring it.

It is said that the plaintiff was bound to know the law, and that he must have known the facts. So far as the written contract alone was concerned, if not ambiguous or contradictory, this may be true; but when we consider the long course of dealing between the company and Beck, the company and St. Morris, and the company and Waters, concerning which plaintiff was largely uninformed; the company's dealings with plaintiff in reference to the Beck policy, and the ambiguous. character of the contract, it can not be said that the plain

tiff had full knowledge of all the facts, or of his rights that would follow such a complicated state of facts. Indeed, the distinguished counsel representing the respective parties to the action, after a careful and critical review of the law and the evidence, do not agree as to what the facts are, what rights the contract bestows, or what the rights of the plaintiff are under the contract and evidence as it is presented to the court.

In Bennecke v. Conn. Mut. L. Ins. Co., 105 U. S., 355, it is said: "A waiver of a stipulation in an agreement, must, to be effectual, not only be made intentionally, but with knowledge of the circumstances. This is the rule when there is a direct and precise agreement to waive the stipulation. A fortiori is this the rule when there is no agreement either verbal or in writing to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party." Montague v. Massey, 76 Va., 314; Shaw v. Spencer, 100 Mass., 382; Hoxie v. Home Ins. Co., 32 Conn., 40; Garesche v. Loebing, 48 S. W., 657; 96 Va., 649.

The further facts are that it does not appear from the answer or from the testimony that the defendant was misled by the conduct of the plaintiff; or that it would have acted differently had the plaintiff asserted his legal right to the commission at the time of the purchase of the policy. It appears that St. Morris and the company were negotiating with reference to the cancellation of the policy for fraud in the application. Waters, under instructions of the company, cancelled the policy because it was undesirable. Plaintiff did not know what his rights were, but did not want the policy cancelled unless for fraud. The defendant afterward informed the plaintiff that no blame whatever was attributable to him or to the examining physicians in procuring the application, and that other companies considered the risk a good one.

All the facts connected with the assumed waiver or estoppel, plaintiff's right to the commission under the contract, and the purchase of the policy by defendant, were sufficiently and properly submitted to the jury by the instructions quoted and others given by the court.

Under the circumstances of this case we find no reversible error arising from the instructions of the court to the jury; nor do we find that the court erred in refusing to give the instructions requested by the defendant.

In its defense the defendant offered in mitigation of damages to show that Beck was insolvent at the time the notes were surrendered. The testimony was objected to on the ground that it was immaterial, irrelevant, and incompetent, and on the ground that it was estopped by the voluntary sale of the notes before they became due, of interposing that defense. This testimony was rejected.

We are of the opinion that there was no error committed in the ruling of the court. The defendant could have cancelled the policy for fraud, if shown.

The policy would lapse and become invalid by its terms if the notes were not paid at maturity. But the defendAfter it had ac

ant did not see fit to take this course.

cepted the notes in payment of a year's premium, and after one of the notes had been paid, and before the balance of the notes became due, it voluntarily made a bargain with Beck to buy from him the policy in consideration of $500, and the surrender of the remaining notes, without obtaining the plaintiff's assent thereto. By selling the notes and buying the policy, the defendant allowed Beck credit for the value of the notes.

The defendant voluntarily placed itself in a position whereby it had no power to collect the notes, as it was in duty bound to do, or endeavor to do, and therefore it can not now be heard to say that the maker was insolvent

when the notes were surrendered. Ilix v. Edison Elec. Light Co., 41 N. Y. Supp., 680; Wolf v. Marsh, 54 Cal., 228.

In addition to this, the defense of Beck's insolvency sought to be interposed on the trial was new matter offered in mitigation of damages, was not pleaded, or in any manner suggested in the answer. The action was on a contract to recover plaintiff's commissions from defendant, not from the maker of the notes, and if such a defense was admissible at all in such a case as this, it should have been set up in the answer. Sec. 2968, Rev. Stat., requires a statement of any new matter constituting a defense or counterclaim to be set up in the answer. McKyring v. Bull, 16 N. Y., 297; Morrill v. Irving Ins. Co., 33 N. Y., 443; Pom. Code Rem., Secs. 693, 694, 695; Foland v. Johnson, 16 Abb. Pr., 235; Gilson v. Price, 18 Nev., 118; Babb v. McKey, 10 Wis., 314; 5 Enc. Pl. & Pr., 774; 1 Suth. on Damages, Secs. 165, 166; Fenstermaker v.. Tribune Pub. Co., 12 Utah, 532; 1 Enc. Pl. & Pr., 830; Piercy v. Sabin, 70 Am. Dec., 692; Williams v. Hill, 72 N. Y., 36.

Upon the whole record we find that the instructions given fully and fairly covered the issues in the case. The non-suit was properly denied, and no reversible error appears in the record.

The judgment of the district court is affirmed, with

costs.

BASKIN, J., concurs.

BARTCH, C. J., dissents.

J. W. TRIPLER, AGENT, APPELLANT, ข. THE MOUNT PLEASANT COMMERCIAL AND SAV.. INGS BANK, RESPONDENT.

ACTION TO RECOVER DEPOSIT FACTS UNDER WHICH NO CAUSE OF ACTION SHOWN - REAL PARTY IN INTEREST.

In an action to recover a certain sum alleged to have been deposited in defendant's bank, for the use and benefit of plaintiff, it appeared that plaintiff, from Colorado, sent a check on a bank in that State to defendant, " for deposit to the credit" of one T.; that the check was entered by defendant for collection, and T. was so notified; that the check was never paid; that a draft on New York, by the bank on which the check was drawn, to cover the amount, was protested · that plaintiff and T. were notified of the protest; that plaintiff afterward sent defendant four other checks covering an amount equal to the first check, and requested a return of the protested draft for use in proving his claim against the insolvent Colorado bank; that plaintiff was not using his own money, but the money of C., and was acting as the agent of C., although he had an interest in the profits of the business conducted, as well as a salary from C. Held, that the proof does not show a cause of action in favor of plaintiff against defendant, and Held further, that plaintiff was not the real party in interest.

(Decided April 9, 1900.)

Appeal from the Seventh District Court, San Pete County, Hon. W. M. McCarty, Judge.

Action by plaintiff to recover the sum of $2,000 with interest, alleged to have been deposited by plaintiff in defendant's bank for his own use and benefit, but in the name of a third party, to be checked out by said third. party. From a judgment for defendant, plaintiff appealed. Affirmed.