Tbe defendant, at the close of plaintiff’s evidence, and at the close of all the evidence, made motions in the court below for judgment as in case of nonsuit, O. S., 567, which the court overruled. In this we can see no error.
“It is the well settled rule of practice and accepted position in this jurisdiction that, on a motion to- nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is 'entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.’ ” Nash v. Royster, 189 N. C., at p. 410.
In Hill v. Philadelphia Life Ins. Co., 35 Fed Rep., 2d Series, when this action was before the Circuit Court of Appeals (4th Circuit), Soper, District Judge, for the Court, said at p. 135-6: “We are impressed with the weight of these considerations, and it may be that they would prevail if supported by evidence on behalf of the company demonstrating that in fact the company had not authorized or acquiesced in the exercise of the power by its agent. But a verdict was directed for the defendant at the conclusion of the plaintiff’s case, and it seems to us that in the present state of the record the argument goes to the weight rather than to the sufficiency of the evidence, and that the case should have been submitted to the jury to determine whether authority to waive the provisions of the policy had actually been conferred. It is clear that policyholders were frequently permitted to make part settlement of premiums due by giving their promissory notes. This was done in the case at bar when the cashier accepted the notes of the insured in part payment of the second premium. The recitals and agreements annexed to these notes, which have been set out above, indicate that the document was executed upon a form prepared by the company for such contingencies. In addition to these established facts, there is a direct testimony of Pemberton that notes were customarily used by policyholders in part payment of premiums subsequent to the first. It would seem that such notes were accepted by Coley as a matter of course in payment of premiums, were sent by him in the regular course of business to the manager of the Southeastern department of the company at Monroe, and were returned to Coley for collection fifteen days before their maturity. Coley’s practice in making collections upon these notes is also significant. He collected cash whenever he was able, but ofttimes accepted renewal notes in place of cash or extended the time for payment of the notes for a few days. It does not appear that, when he exercised the discretion to grant indulgence, he had received prior authority from any superior officer in the company’s employ. We *121think it may be fairly inferred from these circumstances, as the record now stands, that the company was cognizant of its agent’s acts, that it was aware that he was extending the time for the payment of premiums without the authority of a superior officer, and that it acquiesced in his course of dealing.” Numerous authorities are cited in support of the above decision.
In Gazzam v. Ins. Co., 155 N. C., at p. 337 (quoting from Quinlan v. Ins. Co., 133 N. Y., 365), we find: “Now, as heretofore, it is competent for the parties to a contract of insurance, by agreement in writing or by parol, to modify the contract after the policy has been issued, or to waive conditions or forfeitures. The power of agents, as expressed in the policy, may be enlarged by usage of the company, its course of business, or by its consent, express or implied. The principle that courts lean against forfeitures is unimpaired, and in weighing evidence tending to show a waiver of conditions or forfeitures the court may take into consideration the nature of the particular condition in question, whether a condition precedent to any liability, or one relating to the remedy merely, after a loss has been incurred. But where the restrictions upon an agent’s authority appear in the policy, and there is no evidence tending to show that his powers have been enlarged, there seems to be no good reason why the authority expressed should not be regarded as the measure of his power; nor is there any reason why courts should refuse to enforce forfeitures plainly incurred, which have not been expressly or impliedly waived by the company. . . . (p. 338). It is also generally held that stipulations contained in the policy, upon which it shall have its inception and become operative as a contract, may be waived. The Court says, in Wood v. Ins. Co., 149 N. Y., 385, that this doctrine 'has long been settled.’” Bullard v. Ins. Co., 189 N. C., 34; Houck v. Ins. Co., 198 N. C., 303; Smith v. Ins. Co., 198 N. C., 578.
In Murphy v. Ins. Co., 167 N. C., at p. 336, it is written: “It is also held by well considered cases on the subject here and elsewhere that this provision as to forfeiture, being inserted for the benefit of the company, may be waived by it, and such a waiver will be considered established and a forfeiture prevented whenever it is shown, as indicated, that there has been a valid agreement to postpone payment or that the company has so far recognized an agreement to that effect or otherwise acted in reference to the matter as to induce the policyholder, in the exercise of reasonable business prudence, to believe that prompt payment is not expected and that the forfeiture on that account will not be insisted on. Gwaltney v. Assur. Society, 132 N. C., 925; McCraw v. Ins. Co., 78 N. C., 149; Ins. Co. v. Eggleston, 96 U. S., 572; Ins. Co. v. Custer, 128 Ind., 25; Homer v. Ins. Co., 67 N. Y., 478; Yance on Insurance, p. 222.”
*122The principle in the above case is cited and approved in Paul v. Ins. Co., 183 N. C., 159, and at p. 162, it is said: “ ‘A course of action on the part of the insurance company which leads the party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity, on his part, will estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.’ Coile v. Com. Travelers, 161 N. C., 104; Ins. Co. v. Eggleston, 26 U. S., 577; Ins. Co. v. Norton, 96 U. S., 234.” Arrington v. Ins. Co., 193 N. C., 344; Trust Co. v. Ins. Co., 199 N. C., 465.
In the present case Hill (the insured) died before the extended time expired, yet no notice was given of forfeiture by the defendant, and proofs of death were duly filed with defendant company.
In Cooley’s Briefs on Insurance' (2d ed.), Vol. 5, at p. 3969-3970, is the following: “The authority of agents of life insurance companies, so far as the public with whom they deal is concerned, is controlled not so much by the terms of their employment or by the terms of the policies, which they procure, as by the things which the principal permits them to do by the nature and extent of the business for which they are employed and permitted to carry on (McDonald v. Equitable Life Assur. Soc., 185 Iowa, 1008, 169 N. W., 352). Powers possessed by agents of insurance companies are to be interpreted in accordance with the general laiv of agency. Fisk v. Liverpool & London & Globe Ins. Co., 198 Mich., 270, 164 N. W., 522. In Alexander v. Continental Ins. Co., 67 Wis., 422, 30 N. W., 727, 58 Am. Rep., 869, it is said that this rule is absolutely necessary for the protection of the insured. He deals with no one but the agent, and the company cannot deal with its patrons in any other way. Justice and law therefore require that the company shall be held to sanction what the agent agrees to, and on which the insured relies. But where the authority of an agent does not” extend to making a new contract of insurance, he cannot waive a forfeiture; and the act of such agent is not binding on insurer unless it knew, or could have known, what was done, and adopted or ratified the act, or by its act or conduct estopped itself to insist on the forfeiture (Crook v. N. Y. Life Ins. Co., 75 A., 388, 112 Md., 268).” Bank v. Sklut, 198 N. C., 589.
We think" under the law, as above set forth, and the facts and circumstances of this case, that there was evidence sufficient to be submitted to the jury that C. Y. Coley was acting within the scope of the agency when he extended the time of payment of the note given for the premium.
The next contention of defendant is practically a plea of res judicata, or plea in bar. We do not think this plea can be sustained.
*123This is the fourth time this action has been heard: (1) The suit was brought in the Superior Court of Mecklenburg County, N. 0., by plaintiff and against the defendant and O. Y. Coley for $5,000, alleged to be due her as beneficiary under the policy, and was removed to the U. S. District Court for the "Western District of North Carolina, on petition of defendant. At the first trial in the Federal Court a nonsuit was taken as to C. Y. Coley, and the jury failed to agree on the issues submitted, and a mistrial was ordered. (2) At the second trial in the District Court, judgment of nonsuit was entered against plaintiff and she appealed to the Circuit Court of Appeals. The cause was sent back for a new trial, the opinion by Soper, J., has been quoted in part above. (3) At the third trial, in the District Court, the plaintiff took a voluntary nonsuit. (4) This action was instituted 3 February, 1930, for $3,000, instead of $5,000, the court having jurisdiction of that amount — the defendant being a foreign corporation.
“A plaintiff may bring an action and have it heard upon its merits and, if a judgment of nonsuit is entered, he may bring a new suit within one year or he may have the cause reviewed by the Supreme Court. If the Supreme Court affirms the judgment of the trial court he may, under O. S., 415, bring a new action within the period therein specified. But, if, upon the trial of the new action upon its merits, in either event, it appears to the trial court and is found by such court as a fact, that the second suit is based upon substantially identical evidence, and that the merits of the second cause are identically the same, thereupon the trial court should hold that the judgment in the first action was a bar or res judicata and thus end that particular litigation.” Hampton v. Spinning Co., 198 N. C., 240. McIntosh N. C. Practice & Procedure, sec. 627.
The present action we do not think is based upon “substantially identical allegations and substantially identical evidence.” Therefore, it does not come within the Hampton case, supra. Midkiff v. Ins. Co., 198 N. C., 568. It is unnecessary to set forth the facts showing the difference, nor was it necessary for the court below as a matter of law to do so — it was discretionary.
The conduct of defendant in not paying this claim does not appeal to a court of justice. Plaintiff requested C. Y. Coley (admitted by defendant to be its agent, but denying the authority of its agent to extend the note in controversy) to hold the note until the first of March. “That if I did not have the money then I would pawn my ring. He says, ‘Yes, Mrs. Hill, I will hold it until the first of March’” (1928). Her husband, M. Lomax Hill, was killed on 24 February, 1928. The actual amount paid on the premium on a pro rata basis would have carried the policy until 26 March, 1928. The premium in controversy was for the *124period from 26 July, 1927, to 26 July, 1928. Of this, $50 cash liad been paid and two notes given for balance of premium. Tbe first note for $52.17 bad been paid, wbicb was due 26 October, 1927, and the second note for $52.17, wbicb this controversy is over, was due 26 January, 1928. Defendant would forfeit this $5,000 policy, now claimed by tbe widow, on a technical ground, having money in its possession paid by her husband that on a pro rata equitable basis tbe insurance would not have expired until 26 March, 1928. Plaintiff’s husband was killed over a month prior to that time. Like Portia, tbe witness Pemberton, who sold tbe policy in defendant company to tbe dead man, and for justice to his widow, tbe beneficiary in tbe policy, has stepped in and from bis testimony and others tbe jury has under tbe law saved tbe forfeiture, wbicb is “not favored either in equity or in tbe law.” In tbe trial in tbe court below, we can find no error, tbe jury has found tbe facts in plaintiff’s favor.
No error.