Thompson v. Insurance Co.

*257 Me. Justice Beadley, after stating the facts, delivered the opinion of the court. The questions presented for review in. this case arise on the rulings of the court below on the demurrers of the defendant. . It appears from the special pleas that the policy contained the usual condition that it should become void if the. annual' premiums should not be paid on the day1 when they severally became due, or if any notes given in payment-"of premiupis ■ should not be paid at maturity. The replications do not pretend that the note given for premium, which became due'on the twenty-fourth day of October, 1874, was ever paid, or that payment thereof was ever tendered, either during the life of Thompson or after his death; but it is contended that such payment was hot necessary in order to. avoid the forfeiture claimed by the defendant. First, it is contended that the mere taking of notes in payment of the premium was, in itself, a waiver of the conditional forfeiture ; and for this reference is 'made to the case of Insurance Company v. French, 30 Ohio St. 240. But, in .that case, no provision was made in the policy for a forfeiture in case of the non-payment of' a note given for the premium, and an un- ' conditional receipt for the premium had been given when the note was taken; and this fact was specially adverted to by the court. .We think that the decision in that case was entirely correct. But in this case the policy does contain, an express condition to be void if any note given in payment of premium should riot be paid at maturity. We are of. opinion, therefore, that whilst the primary condition of forfeiture for non-payment of the annual premium was waived by the acceptance of the notes, yet, that the- secondary condition thereupon came into operation, by which the policy was to be void if the notes were not paid at maturity. Beside this general answer the plaintiff set up, in her replieatioris, various excuses for not paying the note in question, which are relied on for avoiding the forfeiture of the policy. In the second replication the excuse set up is, that before the note fell due Thompson became sick and mentally and physically incapable of attending to business until his death on the third day of November, 1874, and that the plaintiff was igno *258 rant of the.outstanding- note. We have lately held, in the case of Klein v. Insurance Company (supra, p. 88), that sickness or incapacity is no ground for avoiding the forfeiture of a life policy, or for granting relief in equity against forfeiture. The rule may, in many cases,' be a hard one; but it strictly follows from tbe position that the time of payment of premium is material in this contract, as was decided in the case of New York Life Insurance Co. v. Statham, 98 U. S. 24.. Prompt payment and regular interest constitute the life and soul of the life insurance business ; and the sentiment long prevailed that it co.uld not be carried on without the ability to impose stringent conditions for delinquency. More liberal views have obtainéd on this subject in recent years, and a wiser policy now often provides .express modes of avoiding the odious result of forfeit-, ure. The law, however, has not'been changed,-and if a forfeiture is provided for in case of" non-payment at the day, the courts cannot grant relief against it. Thé insurer may waive it, or may by his conduct lose his right to enforce it; but that is,all. The third replication sets up a usage; on the part of the insurance company, of giving notice of the day of payment, and the reliance of the assured upon having such notice. This is no excuse for non-payment. . The assured knew^ or was bound, to know, when his premiums became due. Insurance Company v. Eggleston (96 U. S. 572) is citéd iu support of this replication. But, in-that case, the customary notice relied on was a notice designating the agent to whom payment was to be made, without which the assured could not-make it, though he had the money ready. As soon as he ascertained the proper agent he tendered payment in due form.' It is obvious that the- present case is very different from'that. The reason why the insurance company gives notice to its members of the time of payment of premiums is to aid their memory and to stimulate them to prompt payment. The company is under no obligation to give such notice, and.assumes no responsibility by giving it. The duty of the-assured'to pay at-the day is-the same, whether notice be given or not-. Banks often give notice to their, customers of the approaching maturity of their promissory notes or bills of exchange; but they are not obliged to *259 give such notice, and their neglect to. do it would--furnish no excuse for non-payment at-the day. The fourth replication sets up a parol agreement of -defendant made on receiving the promissory - note, that the policy should not become void on the.non-payment of. the note alone at maturity, but was to . become void at the-instance and election of -the defendant, which -election had never .been made. As this supposed agreement -is- in .-direct':contradiction .to the express terms of the policy and the note itself, it cannot affect them, but is itself void. We did hold, in Eggleston’s case, it is true, that any agreement, declaration, *or course of action on the part of an insurance company, which leads a party -insured honestly to. believer that by conforming thereto-a-forfeiture of his policy will not be incurre^-, followed by due conformity on his part, will estop the company from insisting upon the forfeiture. An _insurance company may waive-a-,forfeiture or may agree not to enforce a forfeiture; but a parol agreement, made at the time of issuing a policy, contradicting the terms of the policy itself, like any other parol agreement -ineonsistentwith a written instrument made contemporary therewith, is void, and cannot be set up to contradict the writing. So, in this case, a parol agreement supposed to be made at the time of giving and accepting the premium note cannot be set up to contradict the express terms of the note itself, and of the policy under -which it was taken. - The last replication sets up and declares that it was the usage and custom- of the defendants, practised by- them before and after' the making of' said note, not to demand punctual payment thereof- at the day, but- to give days of grace, to wit, for thirty days thereafter; and they had repeatedly so' done with Thompson and others, which led Thompson to rely on such leniency in this case.' This was a mere matter of voluntary indulgence on the part of the company, .or, as the plaintiff herself calls it, an act of “ leniency.” It cannot be justly construed as -a permanent waiver of the clause of forfeiture, or as implying any agreement to waive it, or to continue the same indulgence for the. time to come. As long as the assured continued in good health, it is not surprising, and should not be drawn to the- company’s prejudice, that they were willing *260 to accept the premium after maturity, and waive the forfeiture which they might have insisted upon. This .was for the mutual benefit of themselves and the assured, at the time; and in each instance in which it happened it had respect only to that particular instance, without involving any waiver of the terms .of the contract in reference to their future conduct. The assured had no right, without some agreement to that effect, .to rest on such voluntary indulgence shown on one occasion, or on a number of occasions, as a ground for claiming it on all occasions. If it were otherwise,, an .‘insurance company could never 'waive a forfeiture on occasion of a particular lapse without endangering its right to enforce it on occasion of a subsequent lapse. Such a consequence would be injurious to them and injurious to the public. But a fatal objection to 'the entire case set up by the plaintiff is, that payment of the premium note in question has never been made or tendered at any time. There might possibly be more plausibility in the plea of former indulgence and days of grace allowed, if payment had been tendered within the limited' period of such indulgence. But this has never been done. The plaintiff has, therefore, failed to make a case for obviating and superseding the forfeiture of the policy, even if the circumstances relied on had been sufficiently favorable to lay the ground for it. A valid excuse for not paying promptly on the particular day is a different thing from an excuse for not paying at all. Courts do not favor forfeitures, but they cannot avoid enforc ■ ing them when the party by whose default they are incurred cannot show some good and stable ground in the conduct of .the other party, on which to base a reasonable excuse for the default. We think that no such ground has been shown in the "present case, and that it does not come up to the line' of any of the previous cases referred to, in which the excuse has been allowed. We do not accept the position that the payment of. the annual premium is a condition precedent to the continuance of thNpolicy. ' That is untrue. It is a condition subsequent only, the non-performance of which may incur a forfeiture of the policy, or may not, according to the circumstances. It is always open for the.insured to show a waiver *261 of the condition, or .a course of conduct on the part of the insurer which gave him just and reasonable ground to infer that a forfeiture would not be'exacted. But it must be a just and reasonable ground, One. on which the assured has -a right to rely. Judgment affirmed.