Shaw v. . Republic Life Ins. Co.

Folger, J. Inasmuch as there was testimony tending thereto, the verdict of the jury establishes the facts; that the persons who negotiated with the plaintiff and her husband were authorized so to do by the defendant, in its behalf; that the defendant agreed with the plaintiff to issue to her its policy, as a new insurance upon the life of her husband; and that the note of the husband was taken as an adequate consideration for that agreement. These results are an answer to the exception to the refusal *292 to nonsuit the plaintiff, save as to one ground of the motion, which we will notice further on. The exceptions to the charge were not well taken. The agreement was in writing, and could not be added to by parol. As the husband of the plaintiff was in no way bound to the defendant, as he had no pecuniary interest in the policy, and his estate would have none at his death, we do not see why his note, absolute in its terms, and creating a liability against him which would affect his estate after his death, was not the note of a third person. The rule given to the jury as to it, was correct in law, such being the fact. The other exceptions to the charge, or to the refusals to charge, are not tenable. One of them we will notice more particuularly. The defendant made the point at the trial, both by motion for nonsuit and by exception to refusal of request to charge, that the plaintiff could not recover without showing payment, or tender of payment of a premium in September, 1873. In the view we take of the case, it is not needful to dispute that the annual premium on the policy would have become due and payable on some day in September, 1873, either the 8th or the 15th. Had the company adhered to its agreement to issue its policy, and the policy had been delivered and accepted, with either of those days named in it as the day for payment of premium, failure by the plain- • tiff to make payment, or tender of payment, would have forfeited the contract. But the defendant had, before either of those days arived, refused to take payment of the note, which represented the premium of 1872, had thrown it back, and had, in the language of the charge, “ repudiated the whole arrangement, and was only willing to negotiate .<m the basis of a new arrangement on terms stated by ” its agent. This was a positive, absolute refusal by the defendant to carry out the contract. Where one party to a contract declares to the other party to it, that he will not make the performance on the future day fixed by it therefor, and does not, before the time arrives *293 for an act to be clone by the other party, withdraw his declaration, the other party is excused from performance on his part, or offer to perform, and may maintain his action for a breach of the contract when the day has passed. Such is the Avell-established rule; (Ford v. Tiley, 6 B. & C., 325; Franchot v. Leach, 5 Cow., 506; Traver v. Halsted, 23 Wend., 66.) In England the rule is carried much further, and it is held that the positive, absolute refusal by one party to carry out the contract is in itself an immediate complete breach of it on his part, and dispenses the other party from the useless formality of tendering performance of the condition precedent, and gives immediate right of action; (Cort v. Ambergate R. R. Co., 6 Eng. L. & Eq., 230; Hochster v. De La Tour, 20 id., 157; Frost v. Knight, 7 Law. Rep. [Ex. Chamber], 111; and see also,- for the doctrine in this State, Burtis v. Thompson, 42 N. Y., 246.) But Ave need not at present go further than the proposition first stated, and sustained by decisions in our oavh State reports. There is no doubt that the defendant repudiated all obligation to the plaintiff, and so declared to her. It would have been a useless act for her after that to have sought the defendant and made offer to pay the annual premium. Nor need she, though the defendant had refused future performance, act with effect until the death of her husband, the event Avhich Avas contemplated by the contract as giving immediate right of action. It Avas then she sustained the injury which was the cause of damage to her, by the non-performance by the defendant of their contract; (see, in this particular, the remarks aiid illustration per Grover, J., in 42 N. Y., supra.) We do not perceive that it alters the rule we have stated, that this contract is one of life insurance, and that there might occur several or many occasions Avhen by its stipulations the plaintiff might have precedent conditions to fulfill. It is no more incumbent upon a party to such a con tract to offer performance of the conditions' precedent, because they are many and of periodical recurrence, than upon the promissee avIio has but one act to perform. The *294 declaration of the promissor that he will not perform is an excuse for not offering to perform many and successive conditions, as well as one. For the same reason exists at the occurrence of each period for performance—that it would be useless and unavailing to make tender while the declaration was not withdrawn; (see Crist v. Armour, 34 Barb., 378.) We are therefore of the opinion that the exceptions of the defendant bring no error to our notice, and that the judgment must be affirmed; but with a slight modification. The defendant is held to the contract. The policy which was prepared by it is averred in the complaint and admitted in the answer. By it the premium became due annually, on the 15th of September. There was a premium earned on the ■15th of September, 1873, as the defendant is held to its contract. The amount of that, $54.70, with interest from that date, should be deducted from the verdict. All concur, Andrews, J., concurring in result. Judgment accordingly.