WEEKLY NOTES OF CASES.

Hoare v. Rennie and Simpson v. Crippin were regarded by the profession here as hardly reconcilable, and Hoare v. Rennie, though regarded with distrust, was not considered to be finally overruled; but I ventured at pages 737-8 to point out that in Roper v. Johnson, the case of

VOL. IX.] THURSDAY, FEB. 17, 1881. [No. 26. Simpson v. Crippin was treated as settling the law on this

point. Subsequently, in Freeth v. Burr, the decision of Lord Coleridge so far reconciled the case of Hoare v. Rennie with all the other cases, as to point out that the [The question of the right to rescind after the partial partial breach of an agreement may take place under cirbreach of a severable contract, involved in Norrington v. cumstances which show that the party committing the Wright (reported in the preceding pages), was elaborately breach intended to abandon the contract, and no longer argued. The report gives the substance of the oral argu- to continue to execute his part of it. In such a case, a ments, to which may be added the following extract from partial breach might justify the opposite party in saying: the printed brief of plaintiff's counsel, explaining, arguendo, Well, if you don't intend to go on with the contract, I the application of the case of Pordage v. Cole, as intended also withdraw from it, and give notice that it is rescinded.' by BLACKBURN, J., in the case of Simpson v. Crippin (su- In general, as in this very case, there is not the least difpra). It was urged, among other considerations tending to ficulty in determining at once what the real intention is. show that the contract in this case was severable, that "the It would be absurd even to suggest that the plaintiffs, by provision in the fourth clause, Sellers not to be compelled failing to send the full instalments of one thousand tons to replace any parcel lost after shipment,' shows that each in February and March, intended thereby to abanthe buyers did not attach importance to a complete per- don the contract, inasmuch as they continued the shipformance as being of the essence of the bargain. The ments in April, May, etc. If, in any particular case, the contract looked to successive shipments from any Euro-conduct of the party committing the partial breach were pean port, and provided for 'Settlement cash on presen- such as to render his purpose doubtful, the question like tation of bills accompanied by custom-house certificates of any other disputed issue would be determined by the weight.' Each cargo was to be taken and paid for by jury."] itself; and this is the recognized and decisive test. The uncertainty in the time of arrival, the exemption from liability to replace lost shipments, and the prolonged time for deliveries, all show that it was not vital to the contract that the whole should be delivered.

"The parts may be so related to each other that the failure to deliver one may render the balance useless, or defeat the whole object of the bargain. In such case, the completeness or regularity of delivery goes to the entire consideration, or the failure to deliver each and every parcel as stipulated, defeats the whole purpose of the contract; and it is in this sense that the doctrine of Pordage v. Cole is applicable. It is, of course, competent for the parties so to contract, and their intention may be gathered from the nature of their dealing as well as from express language; but in contracts practically identical with this, between vendor and vendee, the courts have uniformly said a contrary intention appears."

This line of argument refers to a different class of considerations from those suggested by Lord COLERIDGE in Freeth v. Burr (L. R. 9 C. P. 208), who gives this explanation of the authorities: "In cases of this sort, where the question is whether the one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do. or do not amount to an intention to abandon and altogether to refuse performance of the contract. I say this in order to explain the ground upon which I think the decision in these cases must rest. There has been some conflict amongst them. But I think it may be taken that the fair result of them is as I have stated, viz.: that the true question is, whether the acts and conduct of the party evince an intention no longer to be bound by the contract. Now, non-payment on the one hand, or non-delivery on the other, may amount to such an act, or may be evidence for a jury of an intention wholly to abandon the contract and set the other party free."

The opinion of Mr. Benjamin, referred to in the report, was one taken on the contract in suit, in which, after stating, in his judgment, that "under the law of England, as now conclusively settled (though the decisions at one time were somewhat conflicting), the plaintiffs have a good cause of action, and the defence set up would not be regarded as serious," he says: "At the time when I wrote the second edition of my book on Sales, the cases of

Supreme Court.

Life insurance-Proofs of death-Proofs of death filed with a company available under as many policies as the company may have issued upon the life of the deceased-Whether a company which claims that a policy is forfeited may demand proofs of death under such policy -Forfeiture for non-payment of premiumWaiver Custom of receiving over-due premiums- What sufficient evidence of-Effect of custom upon express condition of policy-Stipulation attached to policy-When not considered part of the contract-Mutual companiesDividends-When a company is bound to appropriate an accrued dividend in payment of an accruing premium.

Where an insurance company issues two policies upon the life of the same person, it is not necessary for the representatives of the insured to furnish separate proofs of death under each policy.

Per PAXSON, J. The assured was dead not under one policy but under both, and the facts had been communicated to the company with the cause of death and all the

surrounding circumstances connected therewith which suit had been denied, a writ of error was taken, they desired to know.

In such a case if the contract had called for separate proofs under each policy, or if the different policies demanded a different character of proof, the rule might be different.

Even if the circumstances are such as to justify a com pany in refusing proofs of death upon the faith of which they had already paid one policy, they must make their objections promptly, and where they fail to do so until after a case has been before three juries, and has once been argued before the Supreme Court, they are too late. Where an insurance company resists the payment of a policy on the ground that it has been forfeited for nonpayment of premiums, there is, according to the contention of the company, no policy in existence, and it cannot, therefore, fairly demand proofs of death under a non-existent policy

Where a mutual life insurance company has in its possession dividends standing to the credit of a policy-holder more than sufficient to pay an accruing premium at the time it falls due, it is bound so to appropriate the money, and may not declare the policy forfeited for an alleged failure to pay the premium in question.

Where a premium upon a policy of life insurance fell due on Saturday, Jan. 14, 1871, and payment was tendered on the following Monday morning:

Held (reversing the ruling of the Court below), that evidence to prove a custom of life insurance companies, doing business in Philadelphia, to receive premiums within a reasonable time after they fall due, provided the assured remains in usual health, notwithstanding a forfeiture clause in the policy, is admissible.

and the Supreme Court, on February 25, 1878, reversed the judgment and awarded a procedendo (reported 5 WEEKLY NOTES, 173, and 5 Nor. 236).

A jury was again called, before YERKES, J., on Oct. 30, 1878, and on Nov. 7 following a verdict for the plaintiff for $14,358.50 was rendered. Subsequently a rule for a new trial was made absolute, and the case was again called for trial Nov. 25, 1879.

The policy in suit was numbered 28,735, and was for $10,000; it provided for the payment of before the 14th days of April, July, October, a quarterly "premium of $51, to be paid on or and January in each year during the continuance of the policy," and contained a provision that— "if the said premiums shall not be paid on or before the days above mentioned for the payment thereof, at the office of the company, then and in every such case the company shall not be liable for the payment of the sum assured or any part thereof, and this policy shall cease and determine.""

On the previous trials the defence had been the failure of the assured to pay the premium due on Jan. 14, 1871.

At the head of the two inside pages, and over a column prepared for receipts of premium, on which, however, no receipts had been written, was the following indorsement, in small type,

Girard Trust Co. v. Mutual Life Ins. Co. of N. Y., 5 occupying about two lines:WEEKLY NOTES, 173; s. c., 5 Nor. 236, followed.

It is competent for a lite insurance company to stipulate that premiums received after the day on which they fall due are received as acts of grace, and do not control the future action of the company, but where such a clause is obscurely printed at the top of a blank page, and there is nothing to show at what time it was placed there, it cannot be regarded as a condition of the policy, but is, at most, a qualification of receipts to be thereunder written; and in a case where no receipts were written upon the policy, evidence to show the previous course of dealing with the insured as to the receipt of over-due premiums is admissible.

Per PAXSON, J. "The foregoing [opinion in this case] may appear inconsistent with my dissent in 5 Norris, 236. The case differs in many of its essential features from the case there decided, and as to others my views have been

modified."

Error to the Common Pleas No. 3, of Philadelphia County.

Case, by the Girard Life and Trust Company, administrator of Edward Magarge, deceased, to the use of Sarah R. Magarge, against The Mutual Life Insurance Company of New York, upon a policy of life insurance issued by the defendants upon the life of plaintiff's intestate on April 14, 1863, for $10,000.

The case was originally tried before LYND, J., on September 20, 1875, and the plaintiffs were non-suited; after a motion to take off the non

"Receipts heretofore by the company, of premiums after the day on which they fell due, were by the assured and the company considered acts of grace or courtesy, and as forming no precedent in regard to future payments of premiums on the policy; and all future receipts by the company of premiums after due, are viewed and understood by the parties in interest as acts of courtesy of the company, and in no case to be considered a precedent or a waiver of the forfeiture of the policy, according to the condition expressed therein, if any future payment of premium be omitted on the day it falls due."

It appeared that the company had issued another policy upon Magarge's life, being No. 73,712, for $5000. After his death blanks for proofs of death to be filled by the oaths of the doctor and undertaker in attendance, etc., were furnished by the company, and were properly filled up and filed with the company, who immediately paid the $5000. These proofs were used without objection on the former trials, and the usual subpoena duces tecum for their production on this trial was issued. The circumstances attending the failure to produce them are sufficiently detailed in the opinion of the Supreme Court (infra). John J. Ridgway, Jr., counsel for the plaintiff, then took the stand, and offer was made to prove by him that he furnished the company with proofs of Magarge's death. Objected to, unless the proofs are shown to be connected with the policy in suit. Objection sus

tained. The witness then testified that he had caused copies of the proofs furnished to the company to be prepared, and had compared them The view of the Court below on the question with the originals, and identified the papers shown of the proofs of death was clearly erroneous; him as the copies that he had compared. The all that the company could in reason have depapers offered were, on objection by the defend-manded was reasonable certainty of the death of ant, excluded. Magarge, and that the proofs with which they

The exceptions to the rulings on this branch were furnished were sufficient is amply evidenced of the case are covered by the assignments of by the fact that they paid one policy upon the error, from numbers 1 to 6, inclusive, and num- faith of them. bers 17, 18, and 19.

Plaintiff then offered to prove that when the premium of $51 fell due on Jan. 14, 1871, there was due by the company to Magarge $67.72, as his share of the surplus earned during the pre-dence of the previous dealing between the comceding year, and to be divided among the policy

holders, and offered in evidence a book issued pany and the insured as to the receipt of overby the defendant, and produced on call by their due premiums, in spite of the ruling of this Court agent, entitled "Mutual Life Rates," to show on the former writ of error (5 Nor. 239), was that such was their custom. Offers overruled; condition) printed across the inside of the policy based on the notice (for it cannot be called a exceptions. (20th and 22d assignments.) After the plaintiff had closed, the Court entered so nearly illegible that it seems to have escaped a compulsory nonsuit, which the Court in banc subsequently refused to take off (23d assign-Court would sustain this ruling now on account ment). Plaintiff then took this writ, assigning

as error, inter alia, the rulings on evidence, and of the delay in making the point.
the refusal to take off the nonsuit, as above in-
dicated.

The case was argued in the Supreme Court February 24, 1880, and the Court ordered a reargument, which was had Jan. 4, 1881.

Nothing can be more pointed than the lan- January 24, 1881. THE COURT. This record guage of this Court upon this very case. "If the presents some questions which were not connotices were courtesies with forfeit warning prods, sidered when the cause was here upon a former other acts of the company were opiates. They writ of error (see 5 Norris, 236). The assignshould not give him a notice with one hand and ments are too numerous to be discussed in detail, lull him to sleep with the other." without extending this opinion to an unreasonable length. I will endeavor, as briefly as is consistent with the importance of the case, to indicate the principles upon which it should be ruled.

Girard Co. v. Ins. Co., supra.

The question as to evidence of the custom of insurance companies doing business in Philadelphia has been expressly ruled in our favor. Girard Co. v. Ins. Co., supra. Helme v. Ins. Co., 11 Sm. 107.

That the company should be allowed to declare a policy forfeited for non-payment of a premium of $51, when there was due by the company to the insured $67.72, would be to give judicial sanction to an act of harshness that would quite abrogate the settled principle that equity abhors a forfeiture. It is no answer to say that the company did not know, by the 14th of January, the amount of the dividend declared on the 1st of January which would ultimately be appropriated to the Magarge policy; the facts and figures were in their possession, and if they were lax in making their calculations they cannot expect that others should thereby be made to sufOur contention is supported inHull v. Ins. Co., 39 Wis. 397. Russam v. Ins. Co., 5 Big. 243. Ohde v. Ins. Co., Id. 145.

fer.

Henry J. McCarthy and Wm. A. Porter, for

defendant in error.

A great many unnecessary questions in regard to the proofs of death were asked, but the pertinent question "Where are the proofs ?" seems to have been overlooked, and it is submitted that there was, therefore, no such proof of their loss or destruction as to render the copies admissible. The stipulation in the policy that receipts of overdue premium should be considered acts of grace took the case out of the line of Girard Co. 7. Ins. Co. (supra) and Helme v. Ins. Co. (supra), and rendered the evidence offered as to the previous dealing of the company inadmissible; and that this stipulation was part of the contract is abundantly sustained.

The first question relates to the proofs of death furnished the defendant. It is necessary to a proper understanding of this matter, that the facts, as they occurred at the trial, should be stated. The defendant was a foreign corporation, having its principal place of business in the city of New York. It had a branch office in the city of Philadelphia, and an agent there. It had issued two policies upon the life of Edward Magarge, deceased, one of them No. 73,712 for the sum of $5000, the other No. 28,375 for $10,000. The former policy was paid soon after Mr. Magarge's death; payment of the latter was resisted, and forms the subject of the present contention. The defence was the non-payment of the premium on the day it became due. The facts are, that a quarterly premium of $51 fell due upon January 14, 1871, which was neither paid nor tendered on that day; that on the 16th of the same month, the full amount of said premium was tendered in cash, refused by the company, and the policy declared forfeited.

after giving in evidence the policy in suit, called
Upon the trial in the Court below, the plaintiff,
upon defendant's counsel to produce the "notice
and proofs of death of Edward Magarge given
To this call defendant's counsel replied " there
to defendant and filed in defendant's office."
are no proofs of death under this policy.
plaintiff then called William N. Lambert, agent
duces tecum had been served upon him, to pro-
of the defendant, who admitted that a subpoena
duce the books and papers relating to this case;
that he informed the person who served the sub-
poena, that he would produce the papers; that

the proofs of death had been furnished under policy No. 73,712, which had been paid, that Kensington Bank v. Yerkes, 5 Nor. 227. the proofs were filed by us (the agents), in the Fire Association v. Williamson, 2 Cas. 196. Desilver v. Ins. Co., 2 Wr. 130. office of the company in New York, and were Trask v. Ins. Co., 5 C. 198. brought on here for the trials of this case; that The testimony of Wagner would have been the witness did not know where the proofs were, insufficient to fix the custom of receiving over- but supposed them to be in the hands of the due premiums upon this company in such a man-counsel of the company. The plaintiff then ner as to satisfy the rulings of this Court. called the defendant's counsel to the stand, and Burger v. Ins. Co., 21 Sm. 424. Adams v. Ins. Co., 26 Id. 414. Finally, the company had no right to assume that Magarge desired to have his dividend applied to the payment of his premium; the money was his to appropriate, and the company would not have been justified in doing so for him.

the result of his somewhat extended examination may be embodied in a single question and answer.

Question. Have you in your possession proofs of the death of Edward Magarge, that were filed with the defendant company?

Answer. I have not in my actual possession,

proofs were furnished, except a reference in the "friend's statement" to the number and amount of the policy which the company paid, and an indorsement, evidently by an officer of the company, of the number (73,712) on the back of the papers.

nor had I when the subpoena was served upon | were made. There is nothing upon the face of me within a few minutes, any proofs of death of the papers, copies of which are printed in the Edward Magarge, and I never have had in my paper-book, to indicate under which policy the possession any proofs of the death of Edward Magarge, which purported to relate to the policy now in suit." Some other questions were then asked of the counsel, a portion of which it would have been in better taste to have omitted, and then we have this inquiry: "Where are those papers and those proofs of death you had at the last trial?" This question was objected to, and, according to the bill of exceptions, remained unanswered. The plaintiff then called John J. Ridgway, Jr., whose testimony is so important that I give it in extenso.

"I knew Edward Magarge. I knew of his death on the 21st of February, 1872. I called at the company's office, and informed them of Magarge's death. They gave me three blanks to have filled up and sworn to by a friend of Magarge's, the doctor who attended him in his last illness, and the undertaker who buried him. I either filled them up or caused them to be filled up, but they were filled up and returned in proper form to the company, sworn to by the parties as directed.

"Question. Did you ever obtain the original proofs of death from Judge Porter?

It appears to have been assumed by the company and the Court below, that it was necessary for the plaintiff to have made separate proofs of death under the policy in suit, notwithstanding the admitted fact that such proofs had been furnished, which the company had accepted, and under which it had paid the $5000 policy.

It is undoubtedly competent for a company to contract with the assured, that, in case they issue more than one policy on his life, separate proofs shall be furnished under each policy in case of his death. There was no such contract here. The policy provides for the payment of the sum thereby insured "in sixty days after due notice and proof of the death of the said Edward Magarge." Upon the death of the insured, the company were entitled to notice and due proof thereof. The plaintiff having once made such proof, there was no object in proving it again, and the company had no right to demand second proofs. The assured was dead, not under one

"Answer. I did, and had a copy made of them. I can swear that those (witness here points to the papers) are true copies, made by Mr. Mc-policy, but under both: the fact had been commuAdam, who is in my office, and compared by me, of the proofs of death of Edward Magarge, furnished to defendant. There have been some papers attached.”

I quote further from the bill of exceptions. "Copy of proof of death of Edward Magarge offered in evidence as identified by witness (marked Exhibit A). Objected to. Objection sustained, because the paper itself shows that it referred to another policy. Exception to plaintiff.

nicated to the company, with the cause of death, and all the circumstances connected therewith they desired to know, and as to which it was important they should be informed. A demand that all this should be repeated, merely because two policies had been issued upon Mr. Magarge's life, is as unreasonable as it is foreign to the contract between the parties.

Had the different policies called for different modes of proof, there would have been more force in the demand for proofs under each policy. “Plaintiff now offers in evidence, the identi- Such is not the case, however, and if it were, it fied copies containing statements of doctor, was too late for the company to insist upon this friend, and undertaker, all certified under oath, point. Mr. Magarge had been dead for years; being copies of the proofs of death of Edward the case had been tried three times before in the Magarge, sworn to by doctor March 6, 1872, by Court below, and once here. Upon the previous the friend on March 9, 1872, and the under- trials, these same proofs of death had been protaker's statement sworn to February 29, 1872." duced by the company, and used without objecPapers Nos. 1, 2, and 3 of Exhibit A. "Offer tion. If for any reason the proofs were defecoverruled unless it be shown they were furnished under the special policy in suit. Exception to plaintiff."

It will be observed the Court below placed the exclusion of this evidence upon the sole ground, that the proofs were not furnished under the policy in suit.

No evidence appears to have been offered upon this point. Mr. Ridgway, who furnished the proofs, does not say under which policy they

tive, or were not in conformity with the policy in suit, it was the duty of the company to have so notified the plaintiff. The rule in this respect was accurately laid down by Chancellor WALWORTH in Ætna Fire Ins. Co. v. Tyler (16 Wend: 385). "Good faith on the part of the underwriters requires that, if they mean to insist upon a mere formal defect of this kind in the preliminary proofs, they should apprise the insured that they consider them defective in that particular,