Phœnix Insurance v. Lansing

Maxwell, J. This action was brought by Lansing against the insurance company to recover for the loss of property owned by him, which was insured by said company. It is alleged in the petition that the loss occurred on the 6th of October, 1880. The company in its answer admits making the policy of insurance upon the property in question, but alleges that at the time of making the policy said Lansing as the sole consideration therefor gave the company his promissory note for the sum of $9.80, due on the 1st day of May, 1880, with interest at ten per cent; that he did not pay said note when it became due, nor until the 4th day of April, 1881; that said policy of insurance contained a provision that if the party insured “failed to pay said note on or before the same became due said contract and policy of insurance should thereby be and become void.” The cause was submitted to the court wdthout the intervention of a jury, and judgment rendered in favor of Lansing. A motion for a new trial having been overruled the company bring the cause into this court by petition in error. The errors assigned arc: 1. Errors in the assessment [497] of damages. 2. That the findings are not supported by sufficient evidence. 3. Errors of law occurring at the trial. Nothing is claimed in the brief under the 1st and 3d assignments, and they need not be considered. The policy is dated September 4, 1879, to continue in force for five years — expiring September 4, 1884. It is' claimed — and this is the principalerror relied on — that the note not being paid according to its terms the policy immediately became void; and the loss occurring while Lansing was thus in default of payment that the company is not liable. The note was afterwards paid, the money due thereon being accepted by the company. The company did not surrender the note when it became due, but retained the same and afterwards collected it. This was the consideration for the insurance. Now if the company receives and retains the premium can it as a defense to an action on the policy to recover for loss of the property insured allege a failure to pay promptly at the day? The acceptance of the money is a waiver of any default in that respect. The policy was not void but voidable; and upon the failure of Lansing to pay the note when it became due, the company could have returned the note and demanded a surrender of the policy. But it cannot treat the policy as valid to collect the premium, and void for the payment of losses. The note having been paid after the loss the acceptance of the money waived the condition of forfeiture in the policy, and it was valid and subsisting at the time of the loss. It is objected that the action was not brought within six months after the loss occurred, as provided in the conditions of the policy. It is unnecessary to determine whether or not such a condition will bar an action after the time limited, as the proof clearly shows a waiver of the condition. Justice appears to have been done, and there is no error in the record. The judgment must therefore be affirmed. Judgment affirmed. The other judges concur.