Harnickell v. . New York Life Ins. Co.

Peckham, J. There was no contradictory evidence in the case. At its close the plaintiff requested the court to find the *398 following fact: “ That a delivery of the said policies was accepted by the said plaintiff upon the terms and conditions shown in the agreement signed by the plaintiff and the said 173.10110, a correct copy of which is attached to the complaint in this action marked ‘ A,’ and also to these findings.” The court refused to make such finding, and the plaintiff excepted. If the finding asked for was material and based upon sufficient and uncontradicted evidence, the request should have been granted, and a failure to grant it was error, for which the judgment should be reversed. We think the fact was material and was based upon sufficient arid uncontradicted evidence. It thus appears that an agent of the defendant entered into an agreement with the plaintiff by which the two policies subsequently issued by the defendant were to be accepted by the plaintiff, only upon condition that certain other policies then delivered by the plaintiff to the agent should be surrendered by him to the companies issuing them, and their surrender value in cash paid to him or paid-up policies given in exchange therefor, in either case in amounts satisfactory to the plaintiff. This, we think, was clearly a condition precedent to the full delivery and acceptance of these policies issued by the. defendant, and until such condition precedent was complied with or waived, no fully executed and valid contract of insurance existed between these parties. No question of right to conditionally receive an instrument, not under seal, by a party thereto can be successfully raised. Benton v. Martin (52 N. Y. 570) decides this proposition, and leaves it unnecessary for us to discuss the abstract question as to whether there is or is not a good reason for the distinction between the case of a sealed and an unsealed instrument in this respect. The provisions contained in the policies, which are above quoted, relate to the policies themselves after they should become executed instruments between the parties. All negotiations had before such event, and all parol agreements between the assured and the agent of the defendant, would *399 have been merged in the contract evidenced by the policies themsfelves, had the negotiations been carried out as intended, and such policies been absolutely delivered to and accepted by the plaintiff. Hence any oral representation or statements made by the agent of the company, and not contained in the contract of insurance, would have formed no part thereof, and could not have been insisted upon by the plaintiff as against the defendant company. Such are the cases which have been cited by the learned counsel for the defendant in relation to the absolute merger of all previous negotiations between the agent and the insured in the written contract of insurance. The learned counsel for the defendant claims that the condition referred to, assuming it to have been made, was a condition subsequent, and that, at all events, a condition subsequent would be invalid as against the contract evidenced by the policies. He says the contract entered into was to cease to be of any effect in case Hamlin did not obtain the surrender or exchange of the plaintiff’s policies in the companies. We think that, instead of the contract ceasing to be of any effect in case Hamlin failed'to accomplish the surrender, the plain meaning was that the contract should not exist until Hamlin had brought about the exchange. In other words, there was not a contract entered into with a provision that it should cease to bind in case Hamlin failed to redeem his promise in the future, but the contract was not to become binding in any event until the condition was performed by Hamlin. And, upon its performance, and not until then, was the contract to become effective. We think, with the learned court below, that it is wholly unimportant whether Hamlin had any power from the company to make a conditional delivery or not. The plaintiff had power to attach such conditions as he chose to the acceptance of the policies, and if the agent of the company had no power to make conditional delivery to the plaintiff, the result would still be that no contract was ever made and no absolute acceptance ever had. It cannot be argued for one moment that an absolute delivery of a paper is made to an individual who has *400 power to and does refuse to accept it, except upon condition, because the person who assumed to make the delivery -was an agent who had no authority from his principal to make a conditional delivery. Nor do we think that any inconvenience, at least of much weight, will follow the result of holding that an individual can refuse to accept a policy of insurance from a corporation, except upon the performance of some condition precedent under an arrangement made between him and an agent of the company, which arrangement the agent fails to communicate to the corporation. Insurance companies may, with entire propriety, provide in the same manner as the defendant provided in the policies in question, in cases where the contract of insurance becomes executed. There it is highly necessary and important for the company to know exactly how far they are bound and the entire nature of the contract which has been made between them and the assured. .But an agreement between an individual and the agent of a company, by which the policy is accepted only upon conditions relating to the same, and an agreement to hold the policy until the performance of those conditions, or a failure to perform, cannot, as we think, result in any serious inconvenience to the company. But whether that is so or not cannot alter the right of an individual to refuse to be bound by a policy of insurance until he has absolutely received and accepted it. We think the order of the General Term was right and should be affirmed, and judgment absolute granted against the defendant, with costs. All concur. Order affirmed, and judgment accordingly.