Schissler v. Wisconsin Life Insurance

The-following opinion was filed February 10, 1925: Eschweiler, J. Plaintiffs here contend that the trial court was wrong in holding that under section 15 of the contract above quoted there was, under the evidence, a failure by plaintiffs for two consecutive months to produce paid-for and accepted business. The producing of business under such section clearly relates to the obtaining of an application by one intending to take a policy of insurance, and that when such application had been obtained and forwarded to the company plaintiffs’ functions ceased and they have then produced the business. Between January 4 and March 15, 1917, there were no such applications obtained by plaintiffs. Such period, however, it is contended by plaintiffs, was not the “two consecutive months” under clause 15.quoted above, for the reason, as it is argued, that in the absence of a more specific designation the months must be calendar months and be computed as starting on the first day of some month immediately following a month in which, at any time therein, business had been produced, and that therefore the applications of January 4th prevented the commencement of the period of two consecutive months until the 1st of February, and there having been an application produced in March there was but one instead of two calendar months intervening the January 4th and March 17th applications. Reliance is placed upon sub. (10), sec. 4971, Stats., providing that the word “month” shall be construed to mean a calendar month unless otherwise expressed. This, however, does not determine the time for commencement of a period computed in calendar rather than lunar months. This statute also provides that where the word “year” is used it means a calendar year. The contract in question was made Decern481 ber 3, 1914, and clearly the yearly periods referred to in the contract within which a specified amount of business was required to be produced in order that plaintiffs might preserve their exclusive territory, would expire on the 4th of December of each year thereafter rather than merely start on the 1st of January following. By the same reasoning the expression here involved should be computed as the period of two calendar months from the day upon which any particular insurance business was produced. More than such period had clearly expired at the time of the obtaining of the policy of March 17th and defendant’s letter of March 19th. The parties had expressly agreed that such default should make the contract null and void without notice, and plaintiffs are bound by such provision. Plaintiffs further argue that even if such a construction be given to this clause in question, nevertheless the defendant has in effect waived such cancellation of the contract by its statements in the letter of March 19th; by its issuing a policy upon the application obtained on March 17th; by its letter of April 19th reiterating the statements in the March letter; and especially by its failure to expressly declare, until by letter of July 10th, that reliance was placed by defendant upon the provision embodied in section 15, supra. Plaintiffs having lost their rights in and to the contract and the whole thereof by reason of their own default prior to March 17th, defendant was doing no more by its then letter than offering to plaintiffs the opportunity to accept what in effect would be a new and substantially modified contract minus the undoubtedly valuable provision of having exclusive territory. Such proposition, not being accepted or acted upon by plaintiffs, was of no force or effect and cannot be urged as amounting to a waiver by defendant of the absolute forfeiture of all rights under the original contract. The plaintiffs having failed to show a valid and subsisting [482] contract with the defendant were entitled to none of the relief asked for, and their complaint was properly dismissed. By the Court. — Judgment affirmed. The appellants moved for a rehearing. In support of the motion there was a brief by Lenicheck, Boesel S' Wickhem of Milwaukee. In opposition thereto there was a brief by Schubring, Ryan, Clarke S’ Petersen of Madison. The motion was denied, with $25 costs, on April 7, 1925.