Zigler v. Phœnix Insurance

Givew, J. I. We first inquire whether the defendant did through its agent, G. R. Moore, agree, in consideration of twenty-eight dollars, to be paid by the plaintiff, to continue said policy by renewal for the term of' one year. It is clear that there could be no renewal of the policy until the premium was paid, or that clause in the policy waived which provides that the company shall not be liable by virtue of the policy, or any renewal thereof, until the premium therefor be actually paid. There is no dispute as to what took place concerning the renewal. About ten days before the expiration of the policy the o plaintiff said to Mr. Moore, the agent, that he wished he would attend to renewing the policy which he carried for the plaintiff, and Mr. Moore said he would do so. This is all that passed between them, — no' words about waiving-any conditions of the policy, the amount of the premium, nor when nor how it should be paid. The plaintiff' says: “There was nothing said about the premium.” No premium has ever been offered or paid, and no. renewal was executed or demanded, and the matter of renewal was allowed to stand thus until after the fire, February 5, 1889. Passing the question of Moore’s authority to waive conditions in the policy, we inquire whether it is shown that he did waive the condition in this policy as to the payment of premium. There was [572] nothing in the words oí their interview to warrant such a conclusion. The plaintiff simply expressed the wish that he would attend to the renewal, which he said he would do. There was.no mention oí premium, nor the time of its payment. The plaintiff’s contention is that this interview, construed in the light of their previous mode of doing this kind of business, shows an agreement as alleged. It does not appear that Mr. Moore ever waived any of the conditions of the policies held by the plaintiff, or that he ever extended to the plaintiff time for paying premiums. His habit was to write renewals, take them to the plaintiff, and get his money, but not to waive conditions or extend credit for premiums. It is probable that the plaintiff expected Mr. Moore to bring him a renewal of this policy, and get the premium, and that Mr. Moore intended to do so; but this expectation and intention do not; in the absence of the payment of the premium or an agreement for its payment, constitute a renewal of the policy. O'Reilly v. London Assurance, 101 N. Y. 575. There was.no waiver, and, therefore, could be no renewal, without payment of the premium; and, if Mr. Moore failed to bring the renewal, the plaintiff must have tendered the premium before he would be entitled to a renewal. If, under these facts, the defendant was seeking to recover the premium from the plaintiff, it would be a sufficient answer that it had not made a renewal; it is equally sufficient answer to the plaintiff that he did not pay the premium. It will be observed that the question we are considering is not Moore’s authority to waive conditions ; in the policy, but whether he did in fact waive the condition as to the payment of premiums. ' Young v. Ins. Co., 45 Iowa, 378, and other cases cited by plaintiff, are not in point on this question, as in those cases there was a waiver. Our conclusions are that, under the terms of the policy, there could be no renewal thereof that would bind the defendant until the premium for such renewal was actually paid, or this condition of the policy waived ; and that there was no waiver of the condition, and no payment of the premium, and [573] consequently no renewal of the policy. As this view fully disposes of the case, we do not mention other questions discussed. 'The decree of the district court is reversed. '