be waived into a contract without a consideration when there is no element of estoppel.
“Waiver belongs to the family of estoppel, and the doctrine of estoppel lies at the foundation of the law of waiver.” 40 Cyc. 255. They are frequently used in the cases as convertible terms, especially in insurance contracts and in regard to forfeitures.” “Waiver is the voluntary surrender of a right. Estoppel is the inhibition to assert it from the mischief that has followed.” “Waiver depends upon what one himself intends to do. An estoppel depends upon what he causes another to do.” 40 Cyc. 256-258. “In order to constitute waiver, the right or privilege must be in existence. There can be no waiver of a nonexistent and lost right.” 40 Cyc. 258. ‘‘Waiver is a voluntary act. A voluntary choice is the essence of the act, and not mere negligence.” 40 Cyc. 259- 262.
In writing an opinion it is common for judges to quote the general language of some other judge or court and completely ignore the facts on which the language is based. Thus in this case the general language of a judge is cited as conclusive in favor of the plaintiff without any reference to the facts, while the facts show that the general language has little bearing. In Knickerbocker Insurance Co. v. Norton, 96 U. S. 234, the facts presented a strong case of equity, estoppel, and waiver. The policy in suit was dated April 20, 1867. The premium was $385 a year. The deceased had made annual payments for eight years. He had paid over $2,000. Norton died on August 3, 1875, and the company refused payment on the ground that his policy was forfeited by a failure to pay the last premium note. The note had been settled on a payment of $50 in cash, and plaintiff gave for the balance two promissory notes, payable, respectively, in two and three months. The company had been in the habit of allowing their agents to extend payments for that time, and when the company refused to receive payment the deceased made to it a legal tender of the full amount due. The case presents the strongest appeal to equity and conscience and fair dealing. The wonder is that it should be cited to sustain a case like this, where there was never a payment or offer to pay.
And so there is cited the general language of the United States Supreme Court in N. Y. Life Ins. Co. v. Eggelston, 96 U. S. 572, 24 L. ed. 841. The suit was on a $5,000 life policy made November 11, 1868. The premium was $306 a year, payable semiannually, half on November
