104 Ill. App. 402 | Ill. App. Ct. | 1902
delivered the opinion of the court.
It is contended by appellant’s attorneys that the failure of the insured to' pay the first two of the premium notes at maturity did not necessarily work a forfeiture of the policy, since, as it is claimed, such right of forfeiture was waived by appellee. Such waiver is said to be evidenced, first, by appellee’s letter of December 31, 1898, which notified the deceased that his premium note had fallen due the day before, and asked him to give the matter his attention “ so the insurance will be protected; ” second, by the delivery to appellee’s agent of the order dated January 7, 1899, drawn on Mr. C. M. Hardy and accepted by him, directing payment to appellee of the premium notes “ out of any moneys belonging to me which you may collect on the judgment in favor of Adolph G-runow against the Chicago Tire & Spring Company; ” and third, by appellee’s alleged attempt to enforce payment of all the notes after the maturity of the first two of them.
The forfeiture provision of the policy is as follows:
“ The failure to pay, if living, any of the first three annual premiums, or the failure to pay any notes, or interest upon notes, given to the company for any premium, on or before the days upon which they become due, shall avoid and nullify this policy without action on the part of the company or notice to the insured or beneficiary; and all payments made upon this policy shall be deemed earned as premiums during its currency. Any and all notes with their conditions which may be given for premiums or loans upon the security of this policy, are hereby made a part of this contract of insurance.”
The provisions of the policy that the failure to pay by the insured, if living, “ shall avoid and nullify this policy without action on the part of the company or notice to the insured or beneficiary” is self-executing. As is said in Lehman v. Clark, 174 Ill. 279-288-292: “This is not like those cases where the association must do something or refrain from doing something to make the forfeiture compíete.” The language in that case was “ any member failing to pay * * * shall forfeit his membership in the association and all benefits therefrom; ” and it is said that it differed from such cases as Northwestern Traveling Men’s Association v. Schauss, 148 Ill. 304-311, in which the provision was that the insured, failing to remit his assessment, “ shall forfeit his claim to membership and have his name stricken from the roll,” which contemplated future affirmative action by the association by way of striking the name from the rolls.
That such a provision may be waived by the insurance company, if it elects so to do, is not questioned. “ Such provision is made for the insurer, and if it does not wish to take advantage of it and avoid the policy it may waive the forfeiture.” Germania Fire Ins. Co. v. Klewer, 129 Ill. 599-607; Man. & Merch. Ins. Co. v. Armstrong, 145 Ill. 469-481. But the question here is not as to the power of the appellee, but whether it has in fact waived the forfeiture.
The letter of December 31, 1898, notified the insured that his premium note had fallen due the day before, and invites him to give the matter attention “ so the insurance will be protected.” We do not regard this language as a, waiver of any condition of the policy, assuming for the sake of the argument that a forfeiture could be waived by the writer. The letter invites-the assured to protect the insurance. This he might do, by renewing the forfeited policy or obtaining a new one, as the parties might agree. The letter is not inconsistent with the view that the forfeiture of the policy was an accomplished fact. It does not treat it as still in force. But the policy contains the following provision:
11 The contract of insurance between the parties hereto is completely set out in this policy and the application for the same, and" none of its terms can be modified, nor any forfeiture under it waived, save by an agreement in writing signed by the president, vice-president, secretary or assistant secretary of the company, whose authority for this purpose shall not be delegated.”
If, therefore, the letter in question could be treated as an agreement In writing waiving the forfeiture, it would be, nevertheless, ineffectual, unless signed by one of the four specifically mentioned officers .of the company. It purports on its face to be signed only by the manager of the Chicago agency. • Cases such as are cited by appellant’s attorneys (Chicago Life Ins. Co. v. Warner, 80 Ill. 410; U. C. L. Ins. Co. v. Duvall, 46 S. W. Rep. 518), are not in point. So far as appears, the appellee, by its authorized officers, had no communication with the assured after the forfeiture for nonpayment. This silence and inaction of the company indicate its acquiescence in an affirmance of the self-executed forfeiture.
' So also as to the delivery to the soliciting Chicago agent of the company of the order drawn on Mr. Hardy. It had no effect to modify the terms of the policy or waive the forfeiture for the same reason, if for no other. The soliciting agent had no power so to do. That power existed only in the officers named, and could be exercised by them only “ by an agreement in writing.” -
The offer to prove that all the premium notes were placed in the hands of a collection agency, that demand was made on the insured in his lifetime and suit threatened, was an offer of matter set up in replications filed by appellant to appellee’s pleas. Demurrers to these replications were sustained. Appellant did not stand by the replications but pleaded- over, and went to trial on a general replication. Evidence was not admissible, therefore, under these abandoned replications, and the ruling of the court sustaining the replication can not be assigned for error. MacLachlan v. Pease, 171 Ill. 527-529.
But if it were conceded not only that all these notes were placed by the Chicago agency of appellee in the hands of a collection agency, but that suit was actually brought thereon, facts of that character could not, under the terms of this contract of insurance, be treated as waiving the forfeiture. Such waiver could occur only in the manner which the contract provides, viz., “ by an agreement in writing signed by th® president, vice-president, secretary or assistant secretary of the company.”
Appellee never received any consideration upon this policy, which was forfeited by its terms upon the failure of the assured to pay his first note, and such forfeiture was never waived. The judgment of the Circuit Court will be affirmed.