Lawrence v. Griswold

Christiancy, J. It will not be necessary to notice all the errors assigned in this case. The court erred in receiving the evidence of Griswold as to his custom, or that of the company, of not sending policies to the insured till the whole premium was paid, and this without any evidence, before or afterwards, that defendant was aware of any such custom, or that the contract was made or the note given by him with reference to it. We do not think it necessary to consider the point upon which the plaintiff in error relied as one of the principal grounds of error: the exclusion of evidence to show that the note was made and delivered upon the agreefnent or condition that the plaintiff in error was to be appointed agent of the company, and to be returned to him if not so appointed; nor how far that agreement might be affected by, or merged in, the written agreement, evinced by the «note and the receipt of Griswold given back to Lawrence at the time. If the evidence was admissible, the court erred in rejecting it; but assuming, as was contended by the plaintiff below, and insisted upon by him here, that the parol [417] evidence was not admissible, and that the written instrument must be treated as embodying the whole agreement of the parties, still the receipt given by Griswold referring to the note and stating how, and for what, it was received, must be construed with the note, and being executed at the same time, and having reference to the same transaction, they must both be read as evidence of what the contract or agreement of the parties was. And thus read together, it is at once seen that the policy for which, or part of which, the note was given, and which, from the note alone, would be understood as already issued,-had not in fact been issued. Now it is clear, prima facie, from the face of this receipt, that whatever the custom of the company or the agent had been in other cases as to retaining the policy until the whole premium should be actually paid over in cash, Lawrence’s note was in this instance received as so much payment towards the premium; and neither the company nor its agent had the right to hold both the note and the policy until the note should be paid, nor to make the previous payment of the note a condition of the delivery of the policy. This is clear, not only from the express words, that it was received in payment, but the same intent is indicated even by the blank left unfilled in the receipt, which I have placed in italics, viz.: “and the balance of - dollars is to be paid on the delivery of this policy, or the above amount paid shall be forfeited.” This blank, intended doubtless for cases where only a part of the premium had been paid, and clearly to indicate an express agreement beyond a mere receipt, when filled up in a case to which it was applicable, appears clearly enough to have been purposely left blank in the present case, because the previous portion of the instrument had already acknowledged payment in full for the whole premium, and there was no balance, for the non-payment of which a mere portion already paid could be forfeited. And entirely consistent with this construction are the concluding portions of the same instrument (which are also [418] intended as an agreement beyond a mere receipt), “ said policy to be binding when application is accepted by the company and policy issued. If no policy is written on application, said note money ” [doubtless here meaning said note and money] “ to be returned.” Within the fair meaning of this language in this connection, we think the “issuing” of the policy must be held to include a delivery which will render it effectual as a policy, or contract between the parties, and that the subsequent words are to be understood in the same way. Upon this construction we think the plaintiff below was not entitled to recover upon the note until he had delivered or tendered to the defendant the policy, without any condition of previous payment of the note. And there being no evidence of such delivery or tender, the note, upon the evidence, appeared, prima facie at least, to be without consideration; and this being a suit between the original parties, the want or failure of consideration was a sufficient defense; in fact, if no tender was made of the policy, nor any notice of the acceptance of the application until after the maturity of the note, the defendant was at liberty to rescind, and recover back what he had paid, under his notice of set-off. If the construction could in any way be changed by parol evidence, the question would have been one for the jury upon all the evidence upon both sides, and not for the court. But the court charged the jury that, upon the evidence offered, the defendant showed no defense' to the note, and that the plaintiff was entitled to recover the amount of the note, with interest. Under either view, or any view we have been able to take of the case, we therefore think the court erred in giving this charge. And we may say here, further, that if (under the agreement stated in the receipt) the payment of the premium by the defendant below would have rendered the company liable for the amount insured, in case of death, as assumed by the court, but which we do not think entirely clear, in an action at law, at least; still, if the evidence shows, as [419] we think it tended to show here, that what the defendant contracted for was a policy of insurance, instead of any such resulting liability, be was entitled to have what he ■contracted for, and was not bound to accept any such resulting liability as a substitute for tbe policy. A policy might be much better and more available to bim than any such liability, to be shown only by evidence of all ■the circumstances. He might be able to assign a policy as security for a loan, but such0 doubtful or resulting liability would not be worth as much for this purpose, if for any other, as tbe policy itself; and the court erred in treating it as of equal value to the defendant, and denying to him the right of insisting upon what he had contracted for. The judgment of the circuit court must be reversed, with ■costs, and a new trial awarded. The oLher Justices concurred.