115 Minn. 125 | Minn. | 1911
This action was brought by plaintiff to recover tbe sum of $120 and interest, claimed to be due from defendant under tbe terms of a policy of insurance issued to plaintiff December 11, 1899, by tbe Minnesota Mutual Casualty Company, tbe obligations of which -were assumed by tbe defendant. The policy provides that tbe insured shall be entitled to certain benefits in case of accident or sickness, and, “fourth, to a cash benefit of $120, less any indebtedness due tbe company, upon legal surrender of this policy, after it has been in continuous force, without delinquency, for the term of ten years from its date.” This is tbe provision under which plaintiff seeks to recover in this action.
Defendant made two defenses: (1) That tbe policy bad not been “in continuous force without delinquency” for ten years from-its
1. Defendant urges that the policy had not been “in continuous force without delinquency” for the term of ten years from its date, because it appeared from plaintiff’s receipt book that the one dollar payment for the month of August, 1905, was made August 31, 1905 ; the policy requiring the payment of one dollar on the first day of each and every month during the ten years, and providing that, if premiums are not paid within ten days after they become due, the policy shall be “ipso facto null and void.” It is admitted that this-payment was accepted by the company, and that the policy has always been treated as in force by both the Minnesota Mutual Casualty Company and its successor, the defendant. Defendant' does not contend that this delay in mailing the August, 1905, payment rendered the entire policy void, but insists that because thereof the policy was not “in continuous force without delinquency” for the term of ten years, and that therefore the cash benefit under the clause in question was forfeited.
We hold that this defense is without merit. The company, by accepting the past-due premium, waived, at least as to such premium, the conditions of the policy requiring payments to he made before the tenth of the month, and waived the provision that nonpayment-rendered the policy null and void. We cannot hold that there was a delinquency, or that the policy was not in continuous force, within the meaning of the clause in question.
2. The second defense is that the contract of insurance, so far as-the endowment clause is concerned, is ultra vires the corporation, because the statutes under which it was organized do not give it power to make such an agreement as that contained in the clause. This contention is easily disposed of. Even if the contract is ultra vires, it has been performed by plaintiff, and defendant has received and retained the benefits of such performance. It is too well settled to
Judgment affirmed.
