Eddy

We quote the appellants’ brief on rehearing, in which their position is stated as follows: “There is a distinction between the waiver of a warranty concerning past conditions and one concerning the maintenance of future conditions. Federal courts refuse tó allow a waiver or estoppel concerning conditions of a policy to be performed or maintained in the future but do permit them as to warranties concerning past conditions. This distinction is explicitly laid down by the Honorable Judge Wilbur in Northwestern Nat. Ins. Co. v. McFarlane (C.C.A.) 50 F.(2d) 539 , at pages 542-544 (citing cases), and is likewise set forth in Northern Assurance Co. v. Grand View Building Association, 183 U.S. 308 , at page 340, 22 S.Ct. 133, 153 , 46 L.Ed. 213 , at page 227.”

The appellants are in error in their contention, as will be seen by consideration of the applicable rule; namely, that an oral waiver with full knowledge - is not capable of proof by parol evidence where the policy is in writing, and particularly where the policy expressly provides that such a waiver must be in writing, as in the case at bar. In the leading case of Northern Assurance Co. v. Grand View Building Association, supra,…

(concurring).

I concur in the result reached in this case, affirming the judgment of the District Court, because the record is conclusive as to the cancellation of the policy issued by the Home Accident & Home Fire Insurance Company, prior to the application made by Dr. Garfagni to appellee for a policy of insurance. And I concur in holding that there was no waiver of the provisions of the policy, because there was no proof of compliance with the provision with respect to waiver set out in the opinion. 78 F.(2d) 545, 547 .

However, I cannot agree with the opinion herein with respect to the holding of this court, that the trial court was justified in its express and in its implied finding that the “replacement” of three other policies prior to the application made to appellee, were cancellations within the meaning of the warranty against cancellations.

In so far as the opinion herein so holds, I dissent.