Neiberger, 74 Mo. 167; Richardson v. Insurance Co., 46 Me. 394. The application was made a part of the policy in express terms, and a copy thereof was indorsed upon the policy. This juxtaposition of the application with reference to the policy makes the application a part of the policy, within the rule established by the authorities above cited. Upon receiving the policy with copy indorsed thereon, the plaintiff is legally chargeable with notice and knowledge of the entire terms of the insurance contract, and he is estopped from denying such knowledge. It was the plaintiff's duty to have taken steps at once, upon receiving the policy, to have the same corrected or rescinded. He did not do so, and, by his silence when required to speak, he became constructively a participant in the original fraud of the agent, and thereby forfeited his right under the policy; and, unless defendant has waived such forfeiture, the plaintiff must fail to recover.
Applying the law to the facts, the policy in question was defeated in its very inception; and, by reason of plaintiff's silence as to the fraud, the policy never attached to the risk. Comp. Laws, § 4164. But a forfeiture may be waived by a party entitled to its benefit. In this case there is no claim of an express waiver. The trial court found “that, at the time of the service of defendant’s answer to the plaintiff's complaint in this action, the defendant had full knowledge of all the facts constituting the grounds of forfeiture of said policy, and, with such knowledge, and by way of counter-claim in its said answer, defendant seeks to recover from the plaintiff the amount of the premium note given by said plaintiff as a consideration for the issuance of said policy, and by so doing has waived all forfeiture of said policy.” We think this conclusion of the trial court is correct. To counter-claim upon a premium note is equivalent to an independent action by the defendant against the plaintiff to recover the stipulated consideration for carrying the risk. After full knowledge that the claim was fraudulent in its inception, and consequently that the policy was voidable at the option of the company, the latter saw fit to make demand of its premium by a counter-claim in the answer. It is well settled by the adjudications that the receipt of premium after knowledge of forfeiture operates to waive the
