Kenyon v. Knights Templars & Masonic Mutual Aid Ass'n

Martin, J.: This action was upon a certificate of membership or insurance issued by the defendant, whereby it agreed to pay to the heirs of Alexander M. Kenyon $5,000 within sixty days after satisfactory proof of death. The defendant resists the plaintiff’s claim on the ground that certain statements contained in the application of Kenyon were untrue; also on the ground that the last assessment made by the defendant was not paid by him. The alleged xmtruthfulness of statement relied upon was in the answers to the following questions: “ 3. Profession or occupation, state precise nature of business. Importer and wholesale dealer m wines and liquors. 7. a. Are the habits of said party at the present time, and have they always been, sober and temperate? a. Yes. b. Does the party use intoxicating drinks habitually as a beverage ? b. No. c. Is the person engaged in any way in the retailing of alcoholic liquors ? o. No; keep no bar and sell only at wholesale; have government and town license.” The defendant claims that at the date of such application the habits of Kenyon were not and had not always been sober and temperate, and that at that time he habitually used intoxicating drinks as a beverage. Upon these two questions there was a conflict in the evidence, and the jury found in the plaintiffs’ favor. With that finding we are satisfied and think it should be regarded as final. The defendant also claims that Kenyon was at the time when such answers were made engaged in retailing alcoholic liquors, and hence — 281 — that his answer to that branch of the question was untrue and his certificate consequently void. That Kenyon was engaged in selling alcoholic liquors by the barrel, bottle, quart, pint, and perhaps in smaller quantities, is abundantly established by the evidence; that he kept no bar and was not engaged in the business of selling by the drink is equally well established. Whether he was engaged in retailing alcoholic liquor, and whether under the evidence that question was one of fact or a question of law, are questions which we deem it unnecessary to decide in this case. The undisputed proof was that one Bolles was the defendant’s agent. On the trial Bolles testified: “ I was the agent of the defendant and took this application; it is all in my handwriting except the signature; it was written in Kenyon’s office at his store; did not see his license; cannot tell what has been erased there in the application; I made the erasure myself.” Some questions came up as to what the question (being the question under consideration) referred to, ■ and in explanation of it, I erased it and put the answer down just as Mr. Kenyon stated to me ; my impression is the answer was first written yes, but cannot swear to it; I recollect there was talk at that time between me and Kenyon about the sale of liquor; I talked with Mr. Kenyon at that time about selling liquor over a bar; told him we could not write an applicant in the society that was engaged in that business, selling liquor over a bar or hotel; there was something said in the explanation to me by him of selling by the measure, pint, quart, or half pint, but I cannot tell what explanation he made to me, any more than what is recorded there; * * * I did not know his system of selling was by selling in small quantities any more than I saw; I saw him selling liquor there by the measure myself, but the impression I must have had was that it complied with a wholesale dealer; while I was there I saw them selling by the measure, by the bottle; I understood that he was a wholesale dealer from the fact that he did not sell by the drink; on that occasion I saw him selling in the front room by the bottle; there was a good many barrels of liquor there; I went in the back room and there was a large number of barrels filled with different kinds of liquor I supposed; in the front part of the store there was bottles and barrels, and on- the other side cigars; I didn’t mean by — 282 — putting the word in the application ‘ wholesale ’ that he did not sell in small quantities by the measure, because I saw him selling liquor there by the measure; I meant by putting in the word ‘ wholesale ’ that he didn’t sell by the drink; that is the construction I put upon it, that was the distinction I meant with such men as liquor dealers generally; I supposed it was at that time, and don’t know the difference now; I understood he had two different licenses ; one was a government license from the United States; the principal distinction I had in view was selling over a bar or selling by the drink I knew he was selling by the measure.” From this evidence it not only appears that Bolles was the defendant’s agent, but it also appears that the application in question was drawn up and the answers to the interrogations were inserted by him; that the answer to the question under consideration was inserted by the defendant’s agent at his own suggestion as to form and language employed, and with the understanding that it did, and the intent that it should truthfully describe the kind of business in which Kenyon was then Engaged; that the mistake in the answer to that question, if the answer was incorrect, was the mistake of the defendant’s agent, and not the mistake of Kenyon; that Kenyon fully and fairly informed the defendant’s agent as to the nature of his business and that he sold alcoholic liquor in the manner proved on the trial; and that there was no fraud or collusion on the part of Kenyon. Under these circumstances, can the defendant now controvert the correctness of this answer? We think not. In Miller v. Phœnix Mutual Life Insurance Company (12 N. Y. State Rep., 3; 107 N. Y., 296), Ruger, Ch. J., in delivering the opinion of the court in that case says: “ It is undoubtedly the general rule that a written contract signed by a party thereto, and containing the terms and conditions of an agreement, is conclusive upon him, and that he will not be permitted to show, in avoidance thereof, that other stipulations were made at the time of or before its execution, which would vary, alter or contradict the provisions of the written instrument. Neither is it generally a defense to an action founded upon such an agreement that the party did not read the contract, or was ignorant of its contents, or that it was prepared by the party claiming the benefit of it, unless he also shows that his signature thereto was obtained by — 283 — misrepresentation or fraud. In the case, however, of life insurance policies, it is the settled doctrine of the modern cases, that where the application for insurance is drawn up by the agent of the insurer,, and the answers to the interrogations contained therein are inserted by him at his own suggestion, without fraud or collusion on the part, of the assured, the insurer is estopped from controverting the truth of such statements, or the interpretation which it has given to the-answers actually made by the applicant, in an action upon the-instrument between the parties thereto.” In Mowry v. Rosendale (74 N. Y., 360), Hand, J., in delivering the opinion of the court, says: “ The principle, that if the statements in the application, relied upon as breaches of warranty, are inserted by the agent for the insurers, without any collusion or fraud upon the part of the insm-ed, the insurer is estopped from setting up their error or falsity as breach of warranty, seems now well settled.” In that case it was-also held, that it was not necessary, in order to establish the agency, to show that the alleged agent had a written appointment, or had previously acted as agent, or that the defendant knew that the application was filled up by him. If the person who filled up the application is adopted and recognized by the defendant as its agent in procuring the risk, this is sufficient, and the doctrine of estoppel applies. (See, also, Plumb v. Cattaraugus Mutual Insurance Company, 18 N. Y., 392; Rowley v. Empire Insurance Company, 36 id., 550; Baker v. Home Life Insurance Company, 64 id., 648; Maher v. Hibernia, Insurance Company, 67 id., 283; Flynn v. Equitable Life Insurance Company, 78 id., 568; Grattan v. Metropolitan Life Insurance Company, 80 id., 282, 294; Bennett v. Agricultural Insurance Company of Watertown, 106 id., 243.) The doctrine of' these cases is decisive of the question under consideration. The. defendant is estopped from controverting the correctness of Kenyon’s answers, or the interpretation which was given them when made and hence the defendant’s policy cannot be avoided upon the ground of the untrutMulness of such answers. This leads to the consideration of the question whether the certificate issued by the defendant to Kenyon became void by reason of his omission to pay the last assessment made by the defendant. The contract between the parties was, that if any assessment should not be paid within ten days after notice should be served upon — 284 — Kenyon, personally or by mail, then the certificate should cease and determine. The certificate on which this action was brought was issued by the defendant May 22, 1882. The defendant is a corporation organized under the laws of the State of Ohio; and its place of business is at Cincinnati in that State. Kenyon resided at Water-town, N. Y. The undisputed proof was that between August 17, 1883, and February 27, 1885, fifteen assessments on this certificate were made by the defendant, and that all of such assessments were paid by Kenyon by sending to the defendant by mail his check on the Watertown National Bank, payable to the order of the defendant’s secretary. On March 27,1885, the assessment in question was made. It was for four dollars and seventy-five cents. On April 4, 1885,’ Kenyon sent his check for that sum precisely as he had paid all the former assessments made by the defendant. On April tenth a second notice was sent to Kenyon, asking him to remit by check, jpostal order or express order, to which he replied that he had paid that assessment April fourth, and had defendant’s receipt for it. April fifteenth the defendant replied that there must be a mistake .somewhere, as they had the receipt, and could find no trace of having received a remittance for the payment of such assessment; .and requested him to return the receipt he held, that they might trace the matter up, stating that they would return the same to him. Before the receipt of this letter Kenyon died. His death was sudden and unexpected. There was sufficient funds in the bank to meet this check. The question presented is, whether, under these circumstances, Kenyon’s rights under this certificate were forfeited. If Kenyon had sent the amount of that assessment by sight draft on &■ Cincinnati or New York bank, or by an express money order, as stated in the defendant’s notice, then clearly it would have been a payment and the certificate would not have been forfeited. (Palmer v. Phœnix Mutual Life Ins. Co., 84 N. Y., 64, 71.) That it was the intention of these parties that Kenyon should transmit the amount of his assessment, either by check, draft or order, is obvious. Kenyon had uniformly sent by check. The defendant had always accepted this method of payment as sufficient. It had treated Kenyon’s check as the equivalent of a sight draft or order. Indeed, in the letter sent Kenyon just prior to his death, the defendant — 285 — requested him to send by “ bank check.” It would certainly be eminently unjust if the defendant should now be permitted to insist that this assessment remains unpaid, and that all Kenyon’s rights under this certificate are forfeited because he did not remit the amount of this last assessment by sight draft, post-office or express, money order, instead of by bank check, the method which had been so long and so uniformly adopted and accepted by the parties. We think Kenyon was justified by the course of dealing between the. parties, in regarding the sending of his check as equivalent to sending a draft or order; and that the defendant is estopped by its acts and course of dealing with Kenyon, from claiming that such check was not equivalent to a sight draft, at least so far as to prevent the. defendant from claiming that this certificate was forfeited by reason of the non-payment of that assessment. Where a party to a contract who is entitled to a forfeiture in case of the non-performance by the other party of a condition therein, by his own act induces such other to omit strict performance within the time limited, he cannot exact the forfeiture if the party in technical default, with reasonable diligence thereafter performs or offers to perform. (Leslie v. Knickerbocker Life Ins. Co., 63 N. Y., 27.) In Insurance Company v. Eggleston (96 U. S., 572, 577), Bradley, J., in delivering the opinion of the court ■ in that case says: “ Any agreement, declaration or course of action on the part of an insurance company, which leads a 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 and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.” (Meyer v. Knickerbocker Life Ins. Co., 73 N. Y., 516; Gray v. Green, 9 Hun, 334; Attorney-General v. Continental Life Ins. Co., 33 id., 138; Phoenix Ins. Co. v. Doster, 106 U. S., 30, 34, 35.) Our conclusion is that the certificate in question did not become void by reason of Kenyon’s omission to pay such assessment in some' other manner than that adopted by him. The defendant contends that the court erred in admitting in evidence the stub of the check sent by Kenyon to the defendant. We do not think so. It was not offered until the defendant’s president had testified that it had been altered. This question of alteration was made an issue in the case, — 286 — .and as bearing upon that issue, and in rebuttal of the evidence of • defendant’s president, it was admissible. There are no other exceptions requiring special examination, or which would justify a reversal of the judgment herein. The judgment and order appealed from affirmed, with costs. Hardin, P. J., concurred.