Moses v. Brooklyn Like Insurance

Warner, Chief Justice. This was a bill filed by the complainant against the defendant for the specific performance of a contract contained in a mutual life insurance policy. On the 20th of June, 1868, the defendant made a policy of insurance on the life of R. J. Moses, for the benefit of complainant and her children. By the policy, the defendant, in consideration of the sum of $648 75 then paid, and of the annual payment of the same sum on or before the 20fch of June, in each year, for ten years, assured the life of the said R. J. Moses, in the sum of $15,-000 00, for the term of his life, with participation in profits,, [202] to be paid in sixty days after notice of his death. The premium for insurance was paid part in cash and part by note. One of the conditions expressed in the policy is that, in case the said Georgiana Moses shall not pay, or cause to be paid, the premiums aforesaid on or before the day herein mentioned for the payment thereof, or any note, or notes which may be given to and received by said company in part payment of any premium, on the day or days when the same shall become due, then the policy was to be void. It is also stipulated in the policy that the dividend of profits which may become payable by virtue of this policy to the holders thereof, shall be applied towards the payment of the note taken for part payment of premiums aforesaid. It is further stipulated in the policy, that after two annual payments, should the party wish to discontinue, notice to the company being given before the next premium becomes due, the company will issue a paid up policy for as many teuths of the amount originally assured, as there have been annual premiums paid in cash. The prayer of the bill is that the defendant may be decreed to make to complainant a paid up policy of $3,000 00, and deliver to her the notes given to the company canceled, and receive from her the present policy canceled. On the trial of the case, after considering the evidence, the jury returned the following verdict: “We, the jury, decree that the Brooklyn Life Insurance Company shall issue to the plaintiff a paid-up policy of life insurance for $3,000 00, the said company to hold the note of plaintiff for $432 50, less the dividends, amounting to $268 15, due from said company.” The defendant made a motion for a new trial on the ground that the verdict was contrary to the evidence, contrary to the charge of the Court, and contrary to law; and, also, on other grounds set forth in the motion therefor. The Court granted the motion for a new trial, whereupon the complainant excepted. In our judgment the complainant was not entitled to a decree for the paid-up policy prayed for under the contract contained in the policy, until the note given for the premium [203] had first been paid by the complainant, and the jury found by their verdict that there was still due the company on the premium note $164 35. The payment by the complainant to the company of the two first annual premiums, was a condition precedent to be performed on her part by the terms of the contract, before she was entitled to have issued to her by the company a paid up policy of $3,000 00. To enable the company to pay dividends from the profits, it is indispensably necessary that the assured should pay to the company the annual premiums stipulated to be paid, so as to create a fund from which profits may be derived. Each partner (if we consider the assured in the company as partners entitled to participate in the profits) should bear his or her proportion of the burden imposed on him or her by the contract, before he or she can receive the benefits which may accrue under it. Assuming that the Court charged the law correctly as applicable to the case before it (the charge of the Court not being in the record,) the verdict of the jury was contrary to law, and there was no error in granting the new trial. Let the judgment of the Court below be affirmed.