The Code provides, “ All pleadings must be as brief as is consistent with perspicuity, and the presentation of the facts or matter to be put in issue in an intelligible form; no objection can be allowed for defect of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party thereon.” R. G. § 2629. Again, “ Any pleading which conforms substantially to the schedule of forms attached to this part is sufficient.” R. C. § 2630. Independent of statutory provisions, the rules of pleading are the same in their application to the contract of insurance as to other contracts. The contract or policy of insurance must be declared on, in hcec verla, or according to its legal effect; the plaintiff’s interest in the subject of insurance; tbe payment of the premium ; the inception of the risk ; the performance of any precedent condition or warranty contained in the policy, and the loss, or happening of the event, on which within the terms and meaning of the policy the liability of the insurer attaches, must be alleged. 2 Green. Ev. § 376. The general rule applicable to all executory contracts is, that if the defendant’s performance depended upon a condition precedent, the plaintiff must aver the fulfilment of such condition, whether it is affirmative or negative, or to be performed or observed by him, or the defendant, or a mere stranger to the contract, or must show an excuse for non-performance. If non-performance is excused, the matter of excuse must be distinctly averred. 1 Chit. PI. 320-26. These rules of pleading at common law have been modified, and to some extent abrogated by the statutory provisions to which we have referred. The schedule of forms attached to the third part of the Code has the form of a complaint on a policy of marine insurance. R. C. p. 676. It is very brief, and is a simple statement that the plaintiff claims of the defendant the value of certain goods, not describing them, which the defendant on a certain day insured against loss or injury, against perils of the sea, and other
We shall not inquire whether the complaint, if tested by the rules of pleading at common law, would be subject to the causes of demurrer interposed. For if it is conceded that under these rules the plaintiffs should have set out the application for insurance, and averred the truth of its statements, the necessity of the averment is dispensed with by these statutory enactments. Whether the statements in the application are to be regarded as conditions precedent or warranties, it was not necessary for the plaintiff to notice them. A mere statement of the contract or policy, followed by the general averment that the plaintiffs had complied with all its provisions on their part, and that the defendant had not in a specified matter performed it, is sufficient. In defence, the defendant may set up the non-performance of any condition precedent, or the breach of any warranty, on which his liability depends, and it will be as available as if it appeared on the face of the complaint. The complaint is certainly in substantial conformity to the analogous forms prescribed by the Code, and is therefore sufficient.
Nor was the complaint demurrable, because, according to its averments, the policy was void for uncertainty. The uncertainty is supposed to lie in the designation of the beneficiaries by the general term of “ Children of John Wilson Bledsoe.” In deeds and in devises, the donee or devisee is frequently described merely by his relation to another, and a gift or devise to children has never been supposed to want any element of certainty. In policies of life insurance, the beneficiaries are often designated by no other term than that of children of the
Several of the exceptions resolvé themselves into a single point. The complaint avers the plaintiffs have performed all the conditions on which their-right of recovery depends. The proposition in the circuit court was, under this averment, to make proof of an excuse for the non-payment of an annual premium, on the payment of which the continuance of the policy and the liability of the company depended. The court, against the objection of the appellant, admitted the evidence. As we have already declared, if the plaintiffs had followed strictly the analogous form of complaint prescribed by the Code, it would have been sufficient for them to state that their claim was founded on a policy of insurance of a certain date, issued on the life of John Wilson Bledsoe, by which the defendant promised to pay to them a certain sum on his death, and that he died prior to the institution of suit, of which the defendant had notice. All other allegations are rendered unnecessary. If the. liability of the insurer has not attached, whether from a default of the plaintiffs, or from any other cause, it is matter of defence, which may be presented by plea. ' Apart from this view the policy became a binding contract on the payment of the first cash premium, and although it is declared that it is made upon condition that it is to cease’and determine in the event of a failure to pay the annual premiums as they become due, a breach of this condition is matter of defence, the burden of proving which rests on the insurer. It was not necessary, therefore, for the plaintiff to have averred a performance of this condition, or an excuse for its non-performance. 1 Bigelow’s Life & Accident Ins. Rep. 218. When, therefore, it was urged as matter of defence that the policy was forfeited, or had, in its own words, ceased and determined by the failure to pay, as it was due, the annual premium,- matter of excuse for the failure was properly admissible.
It is apparent the policy was obtained by a father on ’his own life for the benefit of his infant children. The policy was issued and accepted on the expectation that he would pay the premiums. The beneficiaries had a right to adopt the contract, pay the premiums, and keep the policy alive; yet, it was not the expectation or the intention of the real contracting parties that they would do so. The duty of making the payment devolved on the father. After the annual premium had become due, and default had been made in its payment, the father, in
The evidence of the witness Daniel, that Dr. Bledsoe spoke
In answer to a letter from the father, asking an extension of the time of payment of the premium, the secretary of the company replied stating that the policy had been cancelled on. the bo.oks of the company, because no payment had ever been made to the company on it, and requesting him, if the premium had been paid to a deceased agent of the company, to send them a certified copy of the receipt for the payment, and to state when and to whom it was paid, as no premium had been sent them, and they had no record of the payment. These letters having been given in evidence, connected with evidence of the fact that the cash premium had been paid to a deceased agent of the company, the appellant proposed proving that it had never received this premium, was ignorant of its payment, and of the delivery of the policy. The evidence was rejected. The payment to the agent, his authority to receive it not being disputed, was a payment to the company, rendering the policy obligatory as a contract. The cancellation by the company did not affect its validity, or impair the rights of the assured, or of the beneficiaries. They could, by paying or offering to pay the premiums as they became due, have kept it alive, as completely as if the cancellation had not been made. The cancellation was a mere error, which, if not accepted by the assured as a rescission of the contract, could not prejudice either party. The appellant should have been permitted to prove the error in which it originated, and thus have relieved itself from any imputation of an intentional abandonment of the contract, with knowledge that the assured had performed his part, and was relying on it as valid.
The report and decree of insolvency of the estate of the-assured, had in the court of probate, was properly excluded. The effect of the report and decree is simply to declare the status or condition of the estate, as between the personal representative and the creditors. They alone are parties to it, capable of contesting the facts on which it is founded, having interests affected by it, or in any wise concluded by it as a judicial proceeding. As to all other persons, it is res inter alios acta, and not evidence of the insolvency of the decedent,
When this policy was issued, the statutes of this State required foreign insurance companies, transacting business here, to procure a certificate of authority from the comptroller. This certificate could be issued only on the filing of a certain statement, and paying a certain sum to the .Fire Department Association and Medical College of Mobile. ' Any person violating the statute was declared guilty of a misdemeanor, and subject on conviction to fine and imprisonment. R. C. §§ 1180-91. To show the illegality of the policy, the appellant proposed proving its failure to observe the statute. That the .contract of insurance was made here does not seem to have been a disputed fact. The company may have violated the statute, and the agents making the contract may have been liable to the penalty imposed; but neither the assured nor the beneficiaries were involved in, or affected by their guilt. While it is a settled principle, that a contract founded on an act prohibited by statute is void; yet it is subject to this qualification, that although the legislature may forbid the doing of a particular act, a party not privy to it, or involved in the guilt of the transaction, may recover of the guilty actor unless the act itself is void. Whetstone v. Br. Bank Montgomery, 9 Ala. 875.
The statute did not declare void the policy or contract of insurance made here, by a foreign company, without a certificate .of authority. Its purpose was not to absolve the company from liability on its contracts made here. The object was to afford our own citizens ample security against loss, because of transactions had here with the companies. The company and its agents are alone guilty under the statute, if they violate it. Such violation they cannot invoke as .a protection from liability on their contracts. There was no error in excluding the evidence offered to show its want of statutory authority to transact business.
The policy, by its terms, is forfeitable, is to cease and determine and the insurer to be freed from all liability, if the annual premiums were not paid when they became due and payable. The continuance of the policy as a contract — its life — depended on the prompt payment of the premiums. The payment was manifestly the condition precedent, on whieh the parties respectively stipulated for its continuance, and on the non-performance of which they assented to its extinction. Howell v. Knickerbocker Life Ins. Co. 2 Big. Life & Acc. Ins. Rep. 132; Robert v. N. E. Mut. Life Ins. Co. Ib. 141. It is an elementary principle, that the performance of conditions precedent may be waived, or, if the party, whose responsibility is to
The plaintiffs’ action proceeds on the hypothesis that the policy was a binding contract, conferring on them rights, and fixing on the defendant liabilities, which they claim to enforce. If the policy was such a contract, it needs no argument to support the proposition, that it was not in the power of the company to rescind this contract, or by its own act or omission to absolve itself from the liabilities it imposes. The cancellation of the policy on its books was nugatory — impairing no right of the assured, and diminishing no liability it had assumed. As it required the assent of the assured to make the contract, so his assent was necessary to its rescission or renunciation. May on Ins. 567. The policy — which is now the foundation of the action, which is the highest and best evidence of the rights of the assured, and of the liabilities of the insurer — remained unaltered, without a blur or mark on it, exciting suspicion, or requiring explanation, in the possession of the assured, unaffected by this cancellation. The existence of the policy on the books of the company was merely evidence to it of the number and extent of its risks. It was no more than the entry on a merchant’s books of his bills payable, or other debts. The cancellation or erasure of such an entry could work no injury to those having debts against him. How then could the cancellation, which was impotent to harm the assured, and impotent of benefit to the insurer, have prevented the assured from performing the condition on which the continuance of the contract depended ? If the assured desired to keep the policy alive, it should have quickened his diligence in the performance of the condition. It may have indicated a purpose on the part of the insurer to renounce the contract,
There is nothing in tbe letter of the secretary indicating that tbe company would not receive the annual premium, if it was tendered when it became payable. It states tbe cancellation of tbe policy was made because no payment bad been made upon it to tbe company, and requests, if tbe payment was made to a deceased agent of tbe company, that a certified copy of tbe receipt be sent them, with a statement of tbe time, manner, and person to whom it was made. Tbe evidence tbus requested was necessary to enable it to recover from tbe agent or bis representatives, if payment bad been made to him; and it was proper it should be furnished tbe company, to satisfy it of tbe fairness of tbe contract tbe company supposed bad never been completed. Tbe request indicates rather a purpose to continue tbe contract, if it was fair, and it was compbed with by tbe assured, than a purpose unlawfully and without cause to renounce it.
Whenever a party has been excused from the performance of a condition precedent, because of tbe act of the party to whom performance is due, the act relied on has invariably been of a character that rendered performance impossible; or induced tbe belief that it was waived; or that if it was offered it would not be accepted. An act not of this character cannot be regarded as preventing performance, as the proximate cause of non-performance. From the evidence no sucb act is imputable to tbe appellant, and tbe non-payment of tbe premium is without excuse. It is a breach of a condition on which tbe continuance of tbe policy depended. Tbe court erred in tbe charge given on request of tbe appellees, and in tbe refusal of tbe first and second charges requested by the appellant. It is not necessary to notice tbe remaining assignment of errors, as what we have said will probably enable tbe court on another trial to dispose of tbe case correctly.
The judgment is reversed and tbe cause remanded.