Phœnix Insurance v. Carlock

Conger, J. We think the language of the instruction given for appellee was erroneous and misleading. It is too much to say to the jury that from the mere fact of appellant, or its agents, giving extensions of time for definite periods, that such extensions would constitute a waiver of the conditions in the note and policy in this respect. The most that could be said would be that if from all the circumstances and the course of dealing between the parties as shown by the evidence, the jury believed, as a matter of fact, that appellee was reasonably justified in believing that the company did not intend to insist on the condition, and that appellee acted on such belief, that under such circumstances the condition might be considered as waived. In other words, the extensions of time of payment can not be declared by the court, as a matter of law, to waive the condition in the note and policy, but they are circumstances which the jury may take into consideration in determining whether or not a waiver was intended by the parties. For the error of giving this instruction the judgment of the Circuit Court is reversed and the cause remanded. Reversed and remandd.