Te Bow v. Washington Life Insurance

Smith, J.: Upon the 24th of October, 1897, this policy had been in force .more than three months. Te Bow was then entitled to his thirty days’ grace, in which to. pay the premium. The defendant was Unauthorized'to declare the policy forfeited at any time prior to the 23d day of November, 1897. Up to that time, within the terms of the contract, Te. Btow had an undoubted right to pay the premium and maintain the policy in force. The premium was not, however, paid prior to that time nor prior to the death of Te Bow, nor was it tendered. The sole question in' the case seems to be whether the defendant is precluded from asserting the non-payment of said premium as a defense to this action by any act of his own which has contributed to such non-payment. That Patterson was the general agent of the defendant is not disputed. ' His acts in declaring the' policy forfeited by his letters of October twenty-ninth and of November eighth were concededly in violation of the defendant’s contract. These letters, or at least the letter Of November eighth, was shown to Te Bow while there was still abundant time within the contract for Te Bow to have paid the premium. In connection therewith Te Bow was informed by Gaul that to be: allowed to pay the premium he must furnish a health certificate. The appellant here contends that the decla^ rations of Gaul were incompetent evidence against the company, as he was not authorized as an agent in any way to vary the terms of payment. It seems clear that the declarations of the agent authorized to receive premiums, that such premiums would be received only upon a condition, is the declaration of the company. But those declarations we deem inconsequential in this case. They were simply an amplification of the declarations of Patterson, [313] the acknowledged agent of the company, in his letter. It is urged that there never was at any time a refusal to accept the premium. This argument is hypercritical. A declaration that a policy had lapsed and can be reinstated by furnishing a satisfactory medical certificate imports of necessity a- denial of the right to reinstatement except upon the condition named. With the unauthorized cancellation of the policy and a refusal to accept the premium except upon a condition which was unauthorized, the authorities are uniform to the effect that the defendant is estopped from claiming as a defense to this action that the premium has not been paid. In May on Insurance (3d ed.), section 358, it is said : “ Payment or tender of payment of premiums is not necessary where the insurers have already declared the policy forfeited or done any other act which is tantamount to a declaration on their part that they will not receive it if tendered.” In Baumann v. Pinckney (118 N. Y. 616), Judge Vann, in writing for the court, says: “Moreover, after the defendant had ruptured all relations with the plaintiff by repudiating her contract and declaring that all his rights thereunder had been forfeited, was he bound to make any tender before commencing an action for specific performance ? We do not think that it was necessary for him to go through with the form of making an offer of the money when she had virtually declared that she would not receive it.” In Leslie v. Knickerbocker Life lns. Co. (63 N. Y. 33), in the opinion of Judge Folgeb, it is said: “ Even if there be no primary hostile purpose in the action of one who may in a certain event become entitled to a forfeiture or other right arising from the non-performance of a condition, if by his act he has induced another to omit strict performance, he may not take the benefit or exact the forfeiture.” ' In Whitehead, v. New York Life lns. Co. (102 N. Y. 156), Judge Finch says: “ The company cannot depend upon a default to which its own wrongful act contributed and but for which a lapse might not have occurred.” In Shaw v. Republic Life Lns. Co. (69 N. Y. 292) the opinion reads: “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 for an act to be done by the other party, [314] 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 well-established rule.” These authorities furnish abundant support for the judgment in this action. All concurred; Chase, J., in result; Edwabds, J., not sitting. Judgment affirmed, with costs.