Opinion by
Mr. Justice Dean,
On February 17, 1891, plaintiff insured in defendant company against death, disease or accident, a bay horse, in sum of $200 for a term of three years. The company being mutual, the members were subject to assessments for losses; the plaintiff, up to 29th November, 1893, was called on for several assessments, amounting in the aggregate to $80.00, all of which she paid. At that date, the horse, because of an incurable disease in the foot, was killed. The plaintiff demanded the amount of her policy, but the company refused payment on three grounds: 1. Misrepresentation of a material fact as to the value of the horse in her application for the policy. 2. A neglect to give [22]*22notice to the company of the disease of the foot in -writing within the time stipulated by the conditions of the policy. 3. Because the policy, as stipulated by its terms, had been canceled by the company before the death of the horse.
The policy contains these stipulations: “ It is understood and agreed by the holder of this policy, that it may be cancelled at any time during the term for which it is issued, if it be found that any misstatements were made in the application for the same, or important information withheld by the applicant.
“ That in the event of sickness or disability from any cause whatever of the animal insured, written notice to the company must be given of such sickness or disability within twenty-four hours after said animal becomes incapacitated for labor. A failure to give such notice, if death ensue, will work a forfeiture of this policy.”
In the written application, is this interrogatory and answer thereto : “ What did you pay for the above described animal ? Answer: $275.” The evidence was, she had paid $165 for a pair of horses of which the insured horse was one. This constituted the material misrepresentation alleged, and which warranted cancellation of the policy. On November 23,1893, five days before the death of the horse, written notice of cancellation because of misrepresentation was given plaintiff by the company.
Written notice of the disability of the horse was not given, but within twenty-four hours after the driver discovered the disease was of a serious character he called at the office and gave verbal notice to the company, and they immediately sent their surgeon to examine the foot; he and his assistant made altogether five visits for treatment of the horse between the 13th and 24th of November, the last one five days before the horse was killed by order of the surgeon.
It was alleged by plaintiff, that the misrepresentation in the application as to the price she paid for the horse was neither written nor dictated by her; that she could neither read nor write, and that it was inserted by the agent who solicited the policy for the company. It was further argued that the company, in response to the verbal notice as to the horse’s ailment, by sending its own surgeon to treat it, had waived the written notice required by the stipulations of the policy.
[23]*23The court submitted the evidence to the jury to find: 1. Whether plaintiff intentionally made any false representations as to the value of the horse. 2. Whether defendant by its conduct had waived written notice of the horse’s ailment. The jury found for plaintiff the amount of the policy. From the judgment entered on the verdict, defendant now appeals, assigning seven errors, all except the last to the charge of the court on the evidence and answers to points.
The first complaint of the appellant is the answer of the court to his first prayer for instruction, as follows:
“If the jury find that the plaintiff misrepresented in her application the amount paid for the horse insured, the company had the right to cancel the policy, and, having done so for that reason on November 23, 1893, prior to the death of the horse, the plaintiff cannot recover. Answer: If plaintiff knowingly made a false statement or representation in her application which was material to the risk, or which was calculated to deceive or mislead the company, the company would have a right immediately on discovering the misrepresentation to cancel the policy and be relieved from liability.”
It is argued by appellant, he was entitled to a peremptory affirmation of his point, and without this the jury by the answer were at liberty to judge whether the statement that the purchase price was f275, when it was but 1100, was material to the risk. Undoubtedly, as one fact going to determine the value, this representation was material to the risk; but the point is' not so framed as to suggest clearly an answer to that proposition, and the answer must be considered in the light of the evidence and the issue raised at the trial.
There had been evidence that, before any notice to the company of disease in. the horse, the defendant had been informed by the party from whom it was purchased that he had been paid no such price; the verbal notice of disease, according to the testimony of appellant’s surgeon who made an entry in his visiting book of the date, was on the 13th of November; on the 22d of November, the surgeon notified the driver the horse must be killed the next day, and although not killed until five or six days afterwards, yet on the next day, the 23d, the company notified Mrs. Smith of cancellation of policy because of misrepresention; this evidence warranted the inference [24]*24that notice of cancellation was not prompted by misrepresentation as to price, which defendant considered material, bnt by another fact very material, a fatal disease which demanded the destruction of the insured horse. The coincidence of dates of the discoveries that the horse would be a loss, and that a misrepresentation had been made, was very significant; and the further fact, that the company did not immediately cancel the policy on receiving information as to the price paid, but waited for more than a week, is also significant, either of a waiver of its right to cancel, or that it was aware the statement as to price was not that of the insured, but of its own agent; especially does this last seem probable, when this agent accompanies the application with his written opinion, after a thorough inspection of the horse, that his actual cash value was $276.
In the face of this testimony, the point assumes as an established fact, and asks the court to assume, the sole reason for the cancellation was the misrepresentation. The point as it stood should have been negatived, because it withdrew from the jury one of the very questions in dispute, viz, whether the cancellation was prompted by misrepresentation or by a pretended one, by a dishonest attempt to evade an otherwise inevitable liability. But instead of negativing it, the court, having in view the testimony as to plaintiff’s ignorance of the statements put in the application by appellant’s agent, the written opinion of the agent as to the value, and the evidence tending to show the cancellation was not in good faith based on the alleged misrepresentation, gives proper instruction on a point which might have been framed so as to apply to such evidence. A point, therefore, was not answered which should have been denied, and appellant was not harmed.
The second, third and fourth assignments are all based on the same unwarranted assumption of a fact which was in dispute on the evidence. The appellant puts in evidence the application as a formal written statement of facts by plaintiff as the inducement to the company to issue the policy.
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Opinion by
Mr. Justice Dean,
On February 17, 1891, plaintiff insured in defendant company against death, disease or accident, a bay horse, in sum of $200 for a term of three years. The company being mutual, the members were subject to assessments for losses; the plaintiff, up to 29th November, 1893, was called on for several assessments, amounting in the aggregate to $80.00, all of which she paid. At that date, the horse, because of an incurable disease in the foot, was killed. The plaintiff demanded the amount of her policy, but the company refused payment on three grounds: 1. Misrepresentation of a material fact as to the value of the horse in her application for the policy. 2. A neglect to give [22]*22notice to the company of the disease of the foot in -writing within the time stipulated by the conditions of the policy. 3. Because the policy, as stipulated by its terms, had been canceled by the company before the death of the horse.
The policy contains these stipulations: “ It is understood and agreed by the holder of this policy, that it may be cancelled at any time during the term for which it is issued, if it be found that any misstatements were made in the application for the same, or important information withheld by the applicant.
“ That in the event of sickness or disability from any cause whatever of the animal insured, written notice to the company must be given of such sickness or disability within twenty-four hours after said animal becomes incapacitated for labor. A failure to give such notice, if death ensue, will work a forfeiture of this policy.”
In the written application, is this interrogatory and answer thereto : “ What did you pay for the above described animal ? Answer: $275.” The evidence was, she had paid $165 for a pair of horses of which the insured horse was one. This constituted the material misrepresentation alleged, and which warranted cancellation of the policy. On November 23,1893, five days before the death of the horse, written notice of cancellation because of misrepresentation was given plaintiff by the company.
Written notice of the disability of the horse was not given, but within twenty-four hours after the driver discovered the disease was of a serious character he called at the office and gave verbal notice to the company, and they immediately sent their surgeon to examine the foot; he and his assistant made altogether five visits for treatment of the horse between the 13th and 24th of November, the last one five days before the horse was killed by order of the surgeon.
It was alleged by plaintiff, that the misrepresentation in the application as to the price she paid for the horse was neither written nor dictated by her; that she could neither read nor write, and that it was inserted by the agent who solicited the policy for the company. It was further argued that the company, in response to the verbal notice as to the horse’s ailment, by sending its own surgeon to treat it, had waived the written notice required by the stipulations of the policy.
[23]*23The court submitted the evidence to the jury to find: 1. Whether plaintiff intentionally made any false representations as to the value of the horse. 2. Whether defendant by its conduct had waived written notice of the horse’s ailment. The jury found for plaintiff the amount of the policy. From the judgment entered on the verdict, defendant now appeals, assigning seven errors, all except the last to the charge of the court on the evidence and answers to points.
The first complaint of the appellant is the answer of the court to his first prayer for instruction, as follows:
“If the jury find that the plaintiff misrepresented in her application the amount paid for the horse insured, the company had the right to cancel the policy, and, having done so for that reason on November 23, 1893, prior to the death of the horse, the plaintiff cannot recover. Answer: If plaintiff knowingly made a false statement or representation in her application which was material to the risk, or which was calculated to deceive or mislead the company, the company would have a right immediately on discovering the misrepresentation to cancel the policy and be relieved from liability.”
It is argued by appellant, he was entitled to a peremptory affirmation of his point, and without this the jury by the answer were at liberty to judge whether the statement that the purchase price was f275, when it was but 1100, was material to the risk. Undoubtedly, as one fact going to determine the value, this representation was material to the risk; but the point is' not so framed as to suggest clearly an answer to that proposition, and the answer must be considered in the light of the evidence and the issue raised at the trial.
There had been evidence that, before any notice to the company of disease in. the horse, the defendant had been informed by the party from whom it was purchased that he had been paid no such price; the verbal notice of disease, according to the testimony of appellant’s surgeon who made an entry in his visiting book of the date, was on the 13th of November; on the 22d of November, the surgeon notified the driver the horse must be killed the next day, and although not killed until five or six days afterwards, yet on the next day, the 23d, the company notified Mrs. Smith of cancellation of policy because of misrepresention; this evidence warranted the inference [24]*24that notice of cancellation was not prompted by misrepresentation as to price, which defendant considered material, bnt by another fact very material, a fatal disease which demanded the destruction of the insured horse. The coincidence of dates of the discoveries that the horse would be a loss, and that a misrepresentation had been made, was very significant; and the further fact, that the company did not immediately cancel the policy on receiving information as to the price paid, but waited for more than a week, is also significant, either of a waiver of its right to cancel, or that it was aware the statement as to price was not that of the insured, but of its own agent; especially does this last seem probable, when this agent accompanies the application with his written opinion, after a thorough inspection of the horse, that his actual cash value was $276.
In the face of this testimony, the point assumes as an established fact, and asks the court to assume, the sole reason for the cancellation was the misrepresentation. The point as it stood should have been negatived, because it withdrew from the jury one of the very questions in dispute, viz, whether the cancellation was prompted by misrepresentation or by a pretended one, by a dishonest attempt to evade an otherwise inevitable liability. But instead of negativing it, the court, having in view the testimony as to plaintiff’s ignorance of the statements put in the application by appellant’s agent, the written opinion of the agent as to the value, and the evidence tending to show the cancellation was not in good faith based on the alleged misrepresentation, gives proper instruction on a point which might have been framed so as to apply to such evidence. A point, therefore, was not answered which should have been denied, and appellant was not harmed.
The second, third and fourth assignments are all based on the same unwarranted assumption of a fact which was in dispute on the evidence. The appellant puts in evidence the application as a formal written statement of facts by plaintiff as the inducement to the company to issue the policy. The plaintiff denies it contains her representations, and avers they are those of appellant’s agent, made by him on a careful personal inspection of the horse, as shown by his written report made part of the application. There was evidence tending to show every statement in the application was made by the com[25]*25pany’s own agent; he went to the stable, examined the horse, then went to his office, and filled out what purported to be her statement, and on back of same paper indorsed and signed his statements as inspector; then signed her name to the application, took it to her and she affixed her mark.
On the contradictory evidence, the court submits the question to the jury, to find whether she did in fact make a false representation, and whether the policy was issued alone on the .statements made by defendant’s agent. If she had admitted a false statement was made by her, and inserted in the application, or that fact had been clearly proven, the appellant’s complaint of error could be sustained, but each one of the three is based on the assumption that every statement in the application was undoubtedly plaintiff’s, when this was the very fact the jury were to find. The instruction of the court was based on contradictory evidence, or evidence from which might be drawn opposite inferences; if they found the misstatement was that of the company’s own agent, then plaintiff could recover, otherwise not; and viewing the charge in this light, there was no error. The case of Eilenberger v. Insurance Co., 89 Pa. 464, is much the same as the one before us. There the application was for a fire insurance policy; the agent and the insured together inspected the building, the agent inserting the answers to the interrogatories in the application; the insured, without reading or having the application read to him, signed it; the agent then indorsed upon it his own report, which accorded with the statements in the application; the policy issued; the properly was destroyed by fire; it turned out some of the statements in the application were false, but the insured had no knowledge they were until after the fire. It was held as be had signed a statement he had not made and did not intend to make, the company was bound by the act of its dishonest or incompetent agent. To the same effect are Insurance Co. v. Brunner, 23 Pa. 50; Insurance Co. v. Mahone, 21 Wallace, 155, and many other cases.
The fifth assignment is to the answer of the court to appellant’s second point, as follows:
“If the jury believe that the company was not notified within twenty-four hours of the disability of the animal which resulted in his death, the plaintiff cannot recover. Answer: This is [26]*26affirmed with the qualification that the notice must be given within the twenty-four hours after discovering there was anything serious the matter with the horse. If the company accepted and acted upon a verbal notice, it would be a waiver of a written notice.”
The undisputed evidence shows that, in response to plaintiff’s verbal notice, the company immediately sent its surgeon, who examined the horse, and he and his assistant continued their visits until the case became hopeless, and the horse was ordered to be killed. This was clearly a waiver of the right to insist on a written notice. That the company immediately through its surgeons took charge of the animal’s treatment, and then ordered it to be killed, is more than mere evidence from which a waiver might be inferred, it is a waiver by such unequivocal acts as admit of no other construction.
The sixth assignment has nothing of merit to sustain it. The court merely called the attention of the jury to the fact that Dr. Carter, the surgeon sent by the company, had not complained when he saw the horse that he had not been called in time to treat it. While but slight evidence that notice of the disease had been given promptly it was still evidence, and therefore there was no error in adverting to the fact.
The seventh assignment is to the refusal of the court to affirm appellant’s first point, as follows: “ That under the policy, a suit cannot be maintained thereon in Allegheny county, but only in Philadelphia county.” The policy contains this provision: “ And in case any suit or action at law should be brought against the said company, the same shall be commenced in the city of Philadelphia, Pennsylvania, and prosecuted in the courts of the city and county of Philadelphia, state of Pennsylvania, as there is where the home office and books of the company are kept, and all contracts are made and entered into.”
Without determining whether such a provision would be sustained if the question had been raised at a proper time and by proper pleading, it is sufficient answer here to say, that, after filing affidavit to the merits and pleading the general issue, it is too late to deny the jurisdiction of the court which heard the cause and entered judgment. The plea should have been in abatement of the action before the plea in bar; not having been so entered, it will be deemed as waived.
[27]*27“The pleas to the jurisdiction of the court which can be taken as and which are considered to be pleas in abatement, are those which, while admitting jurisdiction in some court, deny it to the particular court in which the suit is brought for some reason alleged; for if no court has jurisdiction, the objection goes in bar and not in abatement: ” Otis v. Wakeman, 1 Hill, 604; Rea v. Hayden, 3 Mass. 24; Stewart v. Ferry Co., 12 Fed. Rep. 296. Here the point alleges the jurisdiction by the contract is in the courts of Philadelphia county, and not in Allegheny county. It is too late to so plead after a plea in bar.
All the assignments of error are oyerruled, and the judgment is affirmed.