117 Wis. 24 | Wis. | 1903
We apprehend that the court reached the conclusion that the forfeiture clause of the contract of insurance -did not include the note by applying the familiar rule of construction, often stated so broadly as to be liable to mislead, that the language of a contract will not be so interpreted as to result in a forfeiture if a different meaning can fairly be attributed to it, and that those parts of a contract embodied therein for the benefit of one party, so expressed as to be ambiguous, should be construed favorably to the other party. Those rules are sometimes supposed to permit a court to violate the contractual intent common to the parties at the
Enough has been said to indicate the correct standard by which to test the accuracy of the construction which the learned circuit judge gave to the contract before us. The language of the forfeiture clause is general. It says: “Failure to pay any premium or note or interest when due will thereupon terminate this contract and insurance and forfeit all payments made to the company.” We assume that the court held that the words “premium or note” were used to convey the idea of premium or premium note, and consequently held that the note in question was not within the forfeiture clause because it was not a premium note; that such a note is one which merely suspends the payment of the premium till the due date of the note; that one taken as a payment of a premium, strictly so called, is not a premium note, but is in effect mere evidence of a loan of money by the company to the assured, the money being used by him to satisfy
But it is said that payment of tbe entire amount tbe assured was required to contribute to tbe company’s reserve fund, tbe $19.06 mentioned in tbe application, was postponed by tbe terms of tbe insurance contract till tbe maturity thereof and made a lien thereon. That is wbat tbe court decided. We cannot agree with that conclusion. It seems to violate tbe plain letter of tbe contract. Tbe application for tbe insurance recited as a fact tbe payment to tbe company at tbe time it was presented of ten per cent, of tbe $79.06. Tbe whole amount of tbe reserve fund to be contributed to tbe assured was not postponed till tbe maturity of bis contract, but, using tbe language of bis application, which of course forms a part of bis contract, “tbe residue, or so much thereof as shall be unpaid at my decease, with any unpaid interest,” etc., was postponed, — the residue left after payment of tbe ten per cent, which the application recited was paid at the time it was presented to the company. .Upon the theory of
It is considered that payment of nine tenths, only, of the reserve fund was by the terms of the insurance contract postponed till the maturity thereof, and that the note for $7.91 was táken for the other tenth and made payable January 1, 1901. It follows that the note is within the forfeiture clause of the policy and that by the nonpayment thereof the policy lapsed, if we are to give effect to the plain language thereof. It was self-executing in form, therefore immediately upon the happening of the event which by the stipulation was of itself to have the effect of terminating the policy contract, it was terminated. The effect of a self-executing forfeiture clause has been so often discussed by this and other courts that we need only at this time, it seems, suggest the rule.
It is said that, conceding that the note is within the forfeiture clause of the policy, the failure of the appellant to make any demand for payment thereof or to suggest in any way to the assured that a forfeiture would be insisted upon, or to do any affirmative act declaring the forfeiture, waived the same. The law, without much conflict in th'e authorities, is settled the other way. Where a note given upon a policy of insurance is made payable at a particular place and it is stipulated in the contract that failure to pay the same according to its terms shall terminate the policy, it is sufficient to make the forfeiture clause operative to have the note at the place designated for payment at the proper time, so as to enable the assured to pay it if he desires to do so, and his failure to
“Unless there is something in the particular circumstances of a case to warrant a departure therefrom, or unless a statute provides otherwise, the rule evidenced by the undoubted weight of authority is, that the contract ceases in such ease .upon default according to and in the manner provided by the stipulations, and that no demand or notice or declaration of forfeiture is necessary.”
The more significant of the cases usually cited to support a view contrary to the one last expressed, will be found upon examination not to do so, or it will be discovered that the courts overlooked the difference between the duty of a holder of a paper which does not evidence an absolute promise to pay or make it the duty of the debtor to pay at a stipulated place, and a note like the one in question in this case. That was clearly pointed out in Pendleton v. Knickerbocker L. Ins. Co. (C. C.) 7 Fed. 173. Roehner v. Knickerbocker L. Ins. Co. 63 N. Y. 160, is a leading case on the subject. The note there was made payable as in this case at a particular place, and at the due date thereof it was there for payment. It was not paid. Nevertheless the claim was made that the forfeiture clause was not rendered operative, because it was necessary for the company to have made known to the assured its intention to claim the benefit of the forfeiture within a reasonable length of time. The court decided that the forfeiture clause was self-executing and that immediately upon the happening of the events stipulated to be sufficient to terminate the insurance contract, it ceased to exist; that the company was under no obligation, as a condition of enjoying the benefit of the stipulation favorable to it, to do more than the parties concerned in the matter agreed should be done, and it did not require the company to make any demand of payment of
The further point is made that plaintiff had a vested interest in the policy which cannot properly be prejudiced without
By the Gourt. — -The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment dismissing the complaint with costs.