McEvoy v. Nebraska & Iowa Insurance

Harrison, J. This is an action for the balance due upon a promissory note of date May 11, 1889, and due June 1, 1889, .in the [783] sum of $225, given for the amount of the premiums for fire insurance issued and procured for the plaintiff in error by the Nebraska & Iowa Insurance Company, payee of the note. There had been payments made aggregating, in amount $97.50. The insurance company recovered judgment in the district court, and the case is presented to this court for review by error proceedings on behalf of the losing party there. It was a part of the insurance contract, and also stated in the note in suit, that if default was made in payment of the note when due, the company was absolved from liability during the continuance of such default, and the contract of insurance to be null and void during such time. It is urged that the judgment was contrary to the evidence and to law, on the ground that there was no real consideration for the note because of the clause which we have hereinbefore indicated. A like contention was made in the case of Phenix Ins. Co. of Brooklyn v. Rollins, decision reported in 44 Neb., 745, with which, in the effect of the facts and circumstances involved, the case at bar is identical, and, after a full discussion the rule was determined and announced as follows: “A clause providing that an insurance policy shall be suspended during the time the premium note shall remain unpaid after maturity, is for the benefit of the company and may be waived by the insurer. A fire insurance policy for the term of five years, at a gross premium for the entire time, the insured giving his note for such premium dué in one year from date, contained a stipulation to the effect that the failure by the insured to pay the premium note when due suspended the policy during such default, but that a subsequent payment of the premium in full revived the policy for the remainder of the term. The defendant made default in the payment of such note, and in an action thereon it was held that the company was entitled to recover the full amount of the note.” The case at bar is within the rule just [784] stated, and it follows that the plaintiff in error is liable for the full amount of the note or for any balance due upon it. As a part of his answer to the petition or cause of action the plaintiff in error pleaded certain payments made upon the note after its maturity, and sought the recovery of the payments from the insurance company on the ground that the amounts were paid after the maturity of the note, and at a time when the plaintiff in error was not further liable for its payment either in whole or in part. The non-liability as to these partial payments is based upon the same reasons as were urged as to non-liability for the whole amount, and having determined it to be unavailing in regard to the whole sum evidenced by. the note, it is certainly so as to a part or parts of it, and there existed no right in the plaintiff in error to a recovery of the partial payments of the note made after its maturity. The judgment of the district court is Affirmed.