14 Ga. App. 353 | Ga. Ct. App. | 1914
A policy of life insurance provided that in case of non-payment of premiums the policy might be surrendered, and in lieu thereof a paid-up policy of a certain character would be issued. There was no provision that after non-payment) of any premium the policy would have a cash-surrender value. After non-payment of a premium when due, • and after some correspondence with, reference to surrender of the policy for a paid-up policy, the assignee of the policy wrote a letter inquiring whether the policy had a “cash surrender value;” to which an agent of the company replied in a letter as follows: “I am in receipt of your letter of the 6th inst., in further reference to policy # 943453 — Daly. Upon referring to the policy you will find that the present cash value of same is $612. I enclose herewith the necessary voucher to be signed by all parties interested and which is to be sent to me, together with the policy and all assignments and reassignments, and the matter will be given attention.” Later the assignee of the policy offered to surrender the policy and demanded payment of the “cash value.” The insurance company denied liability on the policy and refused to pay a cash value. Thereupon the present action was brought to recover the alleged cash-surrender value of the policy. The petition alleged that the writer of the above-quoted letter was “duly authorized” by the defendant company to write the letter “making said cash offer, as will more fully appear from said letter.” The policy provided that the contract could not be varied except in writing and by one of certain named officers of the company. It was not alleged that the writer of the letter was one of these officers. Held:
1. There being no provision in the policy for the payment of any sum of money after the policy had become lapsed by non-payment of premiums, no cause of action upon the policy was set forth in the petition.
2. The alleged contract to pay cash, being a separate and independent undertaking, not provided for by the policy, can not be the basis of a cause of action, unless it contains the essential elements of a contract. The letter relied upon is not a contract, and does not contain any promise to pay any sum of money, but amounts merely to a statement that if certain conditions will be complied with, the request for the payment of a sum of money “will he given attention.” Even if the letter had contained a distinct promise to pay, there was no consideration for the promise; and for this reason it can not be enforced. At the time the letter was written the right to have a paid-up policy issued had expired, the policy had absolutely lapsed, and the promise of the defendant’s agent to pay the plaintiffs a sum of money was a mere nudum pactum.
3. Under the rulings above made, the petition set forth no cause of action even if the allegation in reference to the authority of the agent to write the letter sufficiently shows that the company itself directed that the letter be written. Judgment affirmed.