Opinion of the Court, per MILLER, J.

of the whole year's premium, "as per margin," and an entry upon the margin shows that one-half year's premium was paid, and the other half payable semi-annually. This does not constitute a promise to pay, either express or implied, and in case of non-payment the policy became void, except so far as it was saved by the statute. It merely indicates that if the other half is paid at the close of the six months, the risk will be extended for another six months. It is not a loan. But if it was, as the plaintiff never received the money, it should be applied in payment of the premium, and this, with the money paid, would keep the policy in force for a year, and of course at the time of the death of Selye. In Worthington v. Charter Oak Ins. Co. (41 Conn., 416), the distinction between the premium on a policy of insurance and a debt is pointed out, and it is said that "the theory that the premium, as it becomes duc, is a debt, is a fallacious one and leads to an erroneous conclusion." In the one case, the payment is entirely optional, while in the other, it may be enforced at law. The position that it was a debt, because it was agreed to be paid, is not, we think, well founded. The policy shows one-half year's premium was paid; and if the other half was to be paid at the expiration of six months, the insurance would be continued for a year. There clearly was no agreement which obligated the insured unqualifiedly and absolutely to pay any sum at any time which was named. If the argument urged by the defendant's counsel is sound, then the same rule would apply to yearly payments which are to be made on or before December thirtieth, in each and every year, and these are debts which can be enforced at law, without regard to the wishes of the insured. According to the terms of the policy there is no promise to pay, and it rests with the insured to say how long he will continue it. He can stop it at the end of the year and determine when the policy shall cease. When he refuses to pay, the policy lapses and the insured has no further claim, except what is conferred by the non-forfeiture clause.

We have been referred to some decisions in the State of

Opinion of the Court, per MILLER, J.

Massachusetts, which, it is claimed, sustain the theory of the defendant's counsel; but we think they are distinguishable from the one at bar. In one of them notes were given for the premium, and in the other a memorandum with a promise to pay one-half of the premium. It thus appears that there was an obligation, in each case, acknowledging an indebtedness and binding the insured to pay, which was a debt that could be enforced; while in the case at bar no such promise exists and none is shown by the policy. The difference referred to is quite sufficient to take this case out of the rule laid down in the decisions cited. The result is, that the unpaid premium was not an indebtedness within the statute, and that the policy remained in force at the time of Selye's death.

It is claimed that the plaintiff did not comply with the condition of the policy and the provisions of the statute of the State of Massachusetts, which require that notice of the claim and proof of death shall be submitted to the company within ninety days after the decease of the person insured. It is established that the insured died on the 1st day of October, 1872, and written proof and notice was not delivered to the defendant until the 28th of January, 1874. A recurrence to the facts which have a bearing upon the question presented is essential, in order properly to determine whether any sufficient legal excuse is furnished for a failure to deliver the proof within the time required. The evidence shows that the policy was obtained by means of the agency of the defendant, at the city of Rochester. The agent there transacted such business as is usually done by agents of the company, and, in addition to other duties, he kept a register, in which he made an entry of the death of any person who died, who was insured, and gave notice of such death to the company. He also furnished blanks which were supplied to him by the defendant for proof of death, upon notice, to be delivered to the parties who had an interest in the policy, for the purpose of having the same filled out.

Opinion of the Court, per MILLER, J.

On or about the 5th of October, 1872, the agent was informed of the death of the insured and made an entry in his register of the same, and gave notice thereof to his principal by letter. On the fifteenth of the same month the plaintiff called upon the agent with her husband, and they were informed by him that he had heard of the death of the insured and reported it to the company; that the second premium had not been paid, and on being asked what was necessary to be done, they were told that nothing could be done, because "the policy had lapsed and was void." No blanks were furnished to make the proofs, and it appears to have been conceded by all that none was required, as by the non-payment of the semi-annual premium the policy was forfeited. The same view was taken by the defendant, and the refusal to pay was placed entirely on this ground. The matter remained in this condition until the 17th day of March, 1873, when the plaintiff, being advised that the policy had not lapsed, by her counsel, a correspondence ensued between him and the company, in which, among other things, it was stated that the plaintiff had been misled by the information of the defendant's agent in not furnishing proofs of death, and the question as to the lapse of the policy, under the non-forfeiture act of Massachusetts, was discussed. The answer of the defendant to a letter of the plaintiff's counsel states that the counsel had mistaken the grounds of the refusal of the company to recognize the claim of the plaintiff, and substantially places their objection upon the ground that the policy had expired under the nonforfeiture act. This was followed by further correspondence and an interview between the counsel and some of the officers of the company at Springfield, when the whole subject was discussed, and the only objection made was that the policy had lapsed. Blanks for the proof of death were asked for and furnished by the company, and the proofs of loss sent to the defendant and received and retained by them without any objection. From the brief summary we have given of the leading facts, it is very apparent that the question of furnishing SICKELS.-VOL. XXVIII.

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proofs within the time required was considered as of no sort of importance by the defendant, and the company disclaimed any other ground for a refusal to pay the amount insured by the policy than the lapse of the same. Under the evidence referred to, we are of the opinion that the defendant waived any objection as to the time of furnishing the proofs, and is estopped from interposing any such defense.

The statement of the agent of the defendant was, no doubt, the cause of the omission to present the proofs of the death of the insured, and misled the plaintiff into the mistake, if it can be so regarded, which is now urged as a defense. I think that the act of the agent, in this respect, was not outside of the limits of his authority. He had authority to receive premiums, countersign and deliver renewals, and it was a part of his bounden duty to report the death of the insured, and to receive and deliver to them, who represented the deceased, such blanks as were necessary to make out proofs of loss. He was the person to whom application would naturally be made for information as to what was necessary to be done in case of death, and who was applied to by the plaintiff for that purpose. His answers to inquiries made in regard to matters relating to his duty in the particulars referred to were not beyond his authority or in excess of the power which was conferred upon him. They related to the very subject-matter which was within the course of his usual business, and I am at a loss to see, as there was no excess of power, no stepping beyond the limit of his duty, why his responses to questions put in reference to Selye's death were not the answers and acts of his principal. They had reference to facts connected with the insurance, such as the nonpayment of the premium, as required; the death of the insured and the report of the same to the company, as well as the effect of the failure to pay the premium. The lapse of the policy which, it was stated, was caused by a failure to pay the premium, as well as the effect of a statute of the State of Massachusetts, was a fact dependent upon proof to be furnished, and neither of these, in connection with the other

Opinion of the Court, per MILLER, J.

circumstances mentioned, can be considered as the mere expression of an opinion. He was not only called upon to speak, but it was his duty to answer the inquiries made; and whether he answered right or wrong, the company were bound by declarations thus made, which misled or deceived the applicant. The plaintiff could not well be regarded as having knowledge of the provisions of the non-forfeiture act or of the computation which might continue or cause the policy to lapse. The authorities are numerous which hold that, under such circumstances, the acts of the agent bind the principal, and that he has a perfect right to waive conditions of this description contained in a policy of insurance. (See First Bap. Ch. v. Brooklyn Fire Ins Co., 19 N. Y., 305; Sheldon v. Atlantic F. and M. Ins. Co., 26 d., 460; Wood v. Poughkeepsie Mut. Ins. Co., 32 id., 619; Bodine v. Ex. F. Ins. Co., 51 id., 117; Pechner v. Phoenix F. Ins. Co., 65 id., 195; Pitney v. Glen's Falls Ins. Co., id., 6; Carroll v. Charter Oak Ins. Co., 10 Abb. [N. S.], 166; Dohn v. F. J. S. Ins. Co., 5 Lans., 275; Taylor v. Merchants' Fire Insurance Company, 9 How. [U. S.], 390.)

The cases which are cited to sustain a different rule are distinguishable from the one at bar, as will be seen by reference to some of them. In Van Allen v. The Farmers' Joint Stock Ins. Co. (64 N. Y., 469) the case turned entirely upon the charge of the judge that the local agent had a right to waive the provisions in the policy requiring the plaintiff's to furnish proofs of loss. The proof showed but a restricted authority as agent, and upon a subsequent trial, with some additional evidence, a verdict was rendered for the plaintiff, and upon appeal to the General Term, and afterwards to this court, the judgment was affirmed. In Merserau v. Phoenix Mutual Life Insurance Co. (66 N. Y., 274) the distinct question whether the agent had the power to waive a condition forfeiting a policy of insurance, in case of non-payment of premiums, was not decided; and the case was determined by a majority of the court, upon the ground of an error in