Equitable Life Assurance Society of United States v. Ellis

You. 105. Court began to run from the date of the conversion of the rice the de- fendants in error. The evidence is undisputed that the Beaumont Mills agreement Rice defrauding entered into a secret him with Burge to aid Port Arthur Rice Milling Company of its debt and for purpose concealed the Burge. transaction with This court held that the statute of began limitation to run from discovery the fraud. 2. This court acted alone the facts found the Court of Civil Appeals undisputed and the evidence of the concealment of the fraud defendants error. Counsel for plaintiff in has error fraud, not denied the did not do so argument, virtually ad- mitted it. 3. partner Each was liable for the acts of the others within the scope of A against the business. verdict the partnership against each partner. If, however, there was judg- error the form of the court, ment of the trial it should have been corrected in that court. This authority court exercised its superior in accordance with the Constitution and law and the statement that it has transcended its authority wholly constitutional unfounded. rehearing The motion for is overruled and it is ordered that the is- suing stayed thirty of the mandate be days plaintiff enable in of application error to make for a writ of error to the Supreme the United States. Phillips motion, Mr. Justice determining did not sit in (Delivered January 1913.) Society Equitable Life Assurance United States v. Amanda M. Ellis. 5, 1912; January 8, No. Decided June Insurance—Forfeiture—Waiver. 1.—Life On policy by the issue of waiver of the forfeiture of a life insurance non-payment previous default, premium, of annual dealing the manner of the insurer with purpose evidencing a maintain insurance in general policy, may even determining some breach of its rules and considered regard of its action the effect forfeiture (P. 532.) its waiver. 2.—Same. policy is, by terms, Where an insurance forfeited on failure of stipulated day, annual insured time .of contract, essence and default therein works a unless estoppel by 536.) there be waiver or (P. the conduct of the insurer. 3.—Same. provision non-payment for forfeiture of a may by it; is for the insured is benefit insurer waived and no act of the effectual, estoppel. (Pp. to make such waiver inas case of 536-539.) Life Assurance of U. v.S. Ellis. 1913.~] 4.—Same. Waiver of result, the forfeiture of of insurance will in the absence any agreement effect, negotiations of from or transactions with the knowledge forfeiture, by of insured, recognizes which the insurer validity policy 537.) continued (Pp. 536, or does acts based thereon. 5.—Same. considered, in Evidence policy case of a insurance by life forfeited non-payment annual premium, terms negotiations loan on of consisting correspondence of ending keep an by offer to insurance means of a which, policy, though accepted by insured, the value not by day his received,

who met death violence is held furnish by support evidence of waiver of the forfeiture the insurer sufficient to a sub- mission jury of that issue to the finding (Pp. 530-540.) and a waiver. 6.—Same—Reinstatement—Conditions. An absolute and unconditioned offer to reinstate a policy forfeited on. payments certain by insured, right given is not to be to a referred conditional policy the insured satisfactory proof the terms of to reinstatement on good time, subject health at the nor to be taken as offer to such condition. (P. 538.) —Waiver—Estoppel. 7. Waiver unilateral, being forfeiture is wholly party the act of the . entitled to insist on or right to waive the opposite thereto. No act of the party agreement, necessary complete; make it nor is it necessary that it on new rest supported by consideration, by estoppel. or be a And where made payment adjustment condition some party future the other it does party not cease to be until such effective has failed to meet the condition within the time limited or within a (Pp. 538, 539.) reasonable time. —Insurance—Agency—Authority of Officers. superintendent The upon policies, charge and loans extensions of that department at the home office of an insurance giving instructions agents observed local department, authority to bind com- pany as to the terms policy forfeited would be reinstated and payment premiums. used the basis of a loan for stipulation of its A policy that except by could not be varied certain other officers not (Pp. 540, 542.) conclusive.

ON MOTION FOR REHEARING. 9.—Waiver of Forfeiture—Demand of Premium. Mere demand of the of an overdue will constitute not non-payment. waiver negotiations But here considered are held to ment, demand, propose constitute more than a mere terms of reinstate- recognition to afford evidence of validity continued policy by treating as a (P. 544.) basis of loans. aiver—Condition—Compliance. 10.—W fact The that the insurer insisted on a cash necessary to entitle complete the insured to loan on payments in addition thereto its reinstatement, and that such by insured, was not made prevent furnishing did not offer from evidence a waiver of the for- by recognition validity policy. feiture of the continued The (cid:127) distinguished the latter reinstatement, of waiver and if the prevented by sudden of insured before a death reasonable time be effective offer, might though waiver the terms insurer’s comply (Pp. 544, 545.) the reinstatement was carried out. District, Appeals, appeal Court of Civil Third in an Error County. from Travis 528 Court Reports, You. January, Texas [ judgment. Mrs. Ellis sued the insurance and had It was appeal by defendant, affirmed thereupon who obtained writ of error. Templeton, Ogden, Brooks & Napier, plaintiff in error. The undisputed showing evidence deceased, Ellis, Caswell G. failed to the third annual premium due on said and that by terms thereof it became and was said forfeited for non-payment, being such forfeiture, have been instructed for the defendant. premium ipso and there no evidence of a of such waiver plaintiff was not entitled to recover and a verdict should non-payment forfeited the policy of insurance: Co. Insurance facto 230; Bradley, Texas, v. Insurance Co. Manning, v. Civ. Texas App., 498; Hicks, 424; Insurance Co. v. 37 Texas Insur App., Civ. 1012; Laughlin Association, ance Co. v. 81 S. Reppond, W., App., 448; Lewis, S., 351; Civ. Insurance Co. v. 112 187 U. Insur Pendleton, S., ance Co. v. U. 696. 34; On the of waiver: Harris, Texas, Insurance Co. v. 94 Co., 84 Texas, 61; FitzMaurice v. Insurance pond, Rep Insurance Co. v. 779; 96 W., Chowning, App., S. Insurance Co. v. 8 Texas Civ. 455; Insurance 98 Union 33 Hurlock, 78; Fraternal v. Texas Civ. App., Cowan v. 430; Co., App., Bradley, 37 Texas Civ. Insurance Co. v. Texas, 230; Bissell, 814; Insurance 86 W., Co. v. S. v. Association W., 774; 42 Pike, Thompson Association, 366; 76 S. Moore v. App., Civ. W., 1099; v. Insurance 92 Co., S. United States v. Bos terick, S., 65; Lewis, S., 335; 94 U. Insurance Co. v. 187 U. Thomp 252; 104 Co., S., Savage (Ky.), v. Insurance U. Insurance Co. v. son 278; Meyers W., 385; Co. v. 59 W., (Ky.), W., 31; 63 Insurance S. In S. (Ky.), Price 77 S. Frazer Co., surance Co. v. v. Insurance Ragsdale, 328; 29 In Atl., 1046; E., 45 Insurance Co. v. S. Lantz v. Atl., 80; 21 1 Beach on Modern Law of Co., Contracts, surance sec. Eng. p. 7. 711; Law, Am. Enc. of 17 & cashier, neither the nor the Wyman, Under the terms Brophy, provisions was authorized waive the superintendent, said to a forfeiture for the non-payment pre- pre- reference due, and the letters miums when mium of the therefore reference to said society binding upon the so as to constitute a waiver Harris, 34; Co. v. 94 Texas, forfeiture. Insurance FitzMaurice 61; 117 Co., Texas, Co., Fletcher, 84 Insurance v. v. Insurance Lewis, S., 187 U. 530; Company Insurance v. 335. S.,U. offered with reference the first and second The letters way and in premium proved to the third no relation or tended had no to the third annual therefore should a waiver prove Thompson immaterial and irrelevant. In- v. been excluded have surance 259; S., Chowning, Insurance Co. v. 8 Texas Co., 104 U. Civ. Co., Fed., 63 Insurance 455; v. Smith App., paid, of a was not in A demand fact contrary waiver, going to hold would he otherwise constitute no would justice. Sullivan right v. principles plainest Insurance McCoskey 34 Hamilton, (Ga.), 111; S. E. 41; v. Asso E., 29 S. Co., ; Co., 383 Watrous v. 35 Ga., Iowa, 103 Insurance Brown, v. ciation . 529 of U. S. v. Ellis. Life Assurance 1913.1 In- 148; Boman v. C., 23 Can. S. Co., 532; v. Insurance McGeadie 673; Fed., 101 Berlin, Co. v. 265; Insurance 2 T. Co., C.,& surance Lynn Co., 192; Becker v. Insurance App., 78 Mo. Co., v. Insurance W., 734; 112 v. N. Cohen Co., v. Insurance Fed., 816; Jewett 165 Texas, 329-330. Co., 67 Insurance Robertson, Robert H. Sullivan, James Graves, John G. Alexander in erro Tarlton, for defendant Robertson, B. D. son & contrary. N. restrictions regardless r. Default waived Ins. 163; Am. Union Life W., 102 Stewart v. Bowen, S. Acc. Assn. v. 89; Wis., Co., 74 263; v. Insurance 155 Renier Co., Y., N. Gray, 10-13; Ins. v. 148 German Co. Co., Mo., v. Met. Life Ins. James 240; S., Springfield U. 502; Norton, v. 96 Kan., 43 Life Ins. Co. Phoe Mo., 90; 151 Farnum v. Laundry Co., Co. v. Insurance Steam 517; Ill., 261; Co., Koehler, 149 Life Ins. v. Co., Cal., nix Ins. 83 Texas, Hart, 525; Niagara Lee, v. 73 Ill., 149 Ins. Co. v. Insurance Co. Co., v. Ins. McNight, Ill., 190; 197 Morrison 646; Ins. Co. v. Orient 436; W., Washington Berwald, Ins. 72 S. Texas, 363; Life Co. v. 69 1345; Insur Fitzgerald, Texas, C., 1 C. sec. App. v. Insurance Co. S.,U. Unsell, 144 ance Co. v. 81 generally, Palmer, Life Ins. Co. v. waiver default. As to City 378; Ins. 95; Anderson, Ill., Ins. 77 Crescent Life Co. Ill., Texas, 513; Roby Co., 120 Shook, 59 v. Insurance v. Griffin & Co. 490; In 517; Co., Y., 73 N. Cohen v. Y., Goodwin v. Life Ins. N. 326; S., 326; Texas, Wolfe, Insurance Co. v. U. Co., 67 surance Insurance, 135; May Insurance, 502, 361; 25 on Enc. of Law secs. Kerr on sec. Joyce 867; Eng. (2d ed.), 55; 19 Amer. and Cye., 1356; Ind., Insurance, Co., Sweetzer v. Insurance vol. sec. on 100; Co., App. (N. Y.), 499; Ins. Div. v. Prudential De Griffin Y., Co., 144; 136 N. Beach Law of v. National Life Ins. Fresse Insurance, 768; 2, 769, 756, Co., Doster, Insurance v. 753, vol. secs. 2 752; Hastings Mutual, Fed., Assn. v. 93 v. Beatty, U. 8 etc. S., 106 Y., 470; Ins., N. Bacon on Soc. and Life vol. Co., Ins. 138 Ben. Life Hastings 473; 138 362; Co., Y., v. Life Ins. N. Helm v. 361, 2, secs. 107; S., 544; 96 St., Moray, 61 Insurance Co. v. U. Co., Pa. Life Ins. McCrary, 513; 1 Life Co., 511, Pendleton v. Ins. v. Insurance Seamans 173; Co., 457; 16 v. Thompson Turner v. Insurance Fed. Fed., 7Co., Fed., 752; 252; Spoeri Co., v. 39 S., 104 U. Insurance Co., Insurance Insurance Co. v. Fed., 638; Co., 83 Delleber v. McElroy, Insurance Jones, 115; Ky., v. 84 v. Y., 565; Nashville Assn. Johnson 76 N. Avery, Co., Ky., 403; 79 Protection Ins. v. Mutual Home Co. Southern 85 487; 14 48; Pruett, Ala., Co. v. Gold Life Ala., Mobile Life Ins. Garnary, Ga., 51; Ummerman, 74 Mutual Life Ins. Co. v. Ins. Co. v. 276; 329; Meyer, Ill., Ins. v. 93 Towle v. Insur Ill., Home Co. 119 Co., A., 641; 47 L. R. Co., Mich., 219; McCable v. Insurance 9 ance Wis., Assn. Co., 422; Ins. 67 Nat. Mut. Ben. v. Continental Alexander Minn., 236; Jones, 110; etc., Mueller v. Grand 67 Kan., Grove, 84 v. Murray Lodge, 52 Assn., 402; 90 v. Cal., v. Home Ben. McMahon ; 317; W., Clevenger 3 v. Co., W., v. Life Ins. N. Critchett S. 389 W., 547; Co., H., 5 59 N. Co., Appleton Am. Ins. N. v. Insurance Crea, 653; McNally 41 v. 545; Rep., Ins. Mc Am. American Co. v. 530 Texas 105. Court Yol. Co., Y., 396; Phoenix Ins. 137 Binninghoff N. v. 93 Co., Insurance Y., 495; N. Association, James v. Insurance 49 W., 978; S. Phoenix Ill., 525; Ins. v. 149 Hart, Co. Insurance Co. v. Eggleston, S., 96 U. 572; Co. Norton, 235; Insurance v. 96 U. S., Insurance Co. v. Mc Guire, Ill., 347; 51 Crescent Ins. Co. v. Shook, Texas, Griffin & 59 510; Titus v. Co., Insurance 81 419; N. 1 Y., Croke, 3; Green’s Case Ward v. 4 Day, Best Smith, 335; & 4 Doe Meux, Cress, v. Born & 606; Beach on Insurance, 753; sec. Schwartz, Mutual v. 13 Atl., 769; Eng. New Life Ins. v. Springgate (Ky.) Co. W., 112 S. Globe, Missell v. 681; Co. v. etc., Co., Ins. Y., 115; Chicago N. Life Ins. 76 Warner, 410; Murry 80 Ill., Cal., 406; v. Life Co., Ins. 90 Washburn v. Acc. Co., 485; Insurance 143 Ala., Cyc., 25 869; N. Am. Bowen, 163; Assn. v. 102 W., S. Texas, Insurance v. Lee, Co. 73 646; Co., 263; Stewart v. Life Ins. 155 Y.,N. Co., James v. Ins. Life 10; Mo., Springfield Laundry 148 Co., 90; v. Insurance 151 Morr Mo., Co., 363; ison v. Insurance 69 Dwelling Texas, Renier v. In House Co., Wis., 89; 74 surance Insurance Gray, 502; Co. v. 43 Mc Kan., Assn., v. Assurance Texas, 155; Corkle 71 Perkey, Insurance Co. v. Texas, 604; 89 Co. v. Norton, 240; Insurance 96 U. S., Farnum v. In Co., Cal., 261; 83 Life Koeler, Ill., surance Ins. Ins. Co. v. 514; 149 Orient 190; McKnight, Ill., v. 197 Co. Insurance v. 1 Fitzgerald, Co. 1345; C., Texas C. App. sec. Insurance v. 144 S., 439; Co. U. Unsell, Co., W., 165; v. Insurance 18 Richardson S. Cohen v. Co., Insurance Texas, 67 Ins. 326; Shook, Crescent Co. v. Griffin & 59 Texas, 510; 10 Reppond, 785; Insurance Co. v. Rep., Court Insurance Co. Moriarty, 631; v. 37 W. Rep., O’Neal, S. Insurance Co. v. 38 S. W. Munger, 64; 274-5; v. 49 S. Rep., Rep., Assurance Co. W. Insurance S.), 27 Doster, (U. Ed., 66; v. 16 Otto L. Titus Co. v. Insurance Co., Y., 81 N. until defendant No forfeiture election before death: McMas Hanley 25; Co., 183 U. v. S., Assn., ter v. Insurance Mo., Insurance 69 380; 560; Sholom, Ill., Ins. Co. v. 80 Fireman’s Phoenix Ins. 622; Pilkington Neb., 57 v. 55 Holcom, Co., Mo., Co. v. Insurance 98; Springfield Co., 151 176; Mo., Co. v. Insurance Hamilton v. 368; Norton, Co., Mo., S., 94 Insurance v. 96 Home Ins. Co. U. 240- Palmer, 95; 81 244; Ill., Ins. v. Life Ins. Anderson, Life Co. Co. v. 378; City Shook, Ins. v. Griffin Texas, 77 Crescent Co. & 59 Ill., correspondence, prop- could construe the voluminous jury. 33 erly Cundiff, Texas, 416; Talliferro v. left effect McNutt, Texas, 71; 438; 58 60 Taylor Hilsey, Texas, Mass v. Smith v. 829; Etting Rep., Bank, (U. S.), 43 W. v. 11 Assn., v. S. Wheaton Charging Jury, 19; Smith, v. 59; Thompson West Oh 270; Lilshe, S., 146; Iasigi Burin, v. U. v. U.

S.,U. Boreda S. following Dec., 459; Silsbee, 69 Am. 183; note Boweda Law see 16, p. Ed. Bk. Phillips original opinion Mr. delivered the of the court Justice rehearing. upon and that motion by against in M. was the trial court Amanda Ellis This a suit Society Assurance States to Equitable The Life the United recover by $25,000.00 the issued the life sum upon policy insurance Society of U. Ellis. S. Life Assubance 1913-1 Ellis, 16, 1904, G. the Caswell on the life of upon defendant year. 24th of each upon matured on March which premium annual May 1, from his wound the follow- 1906, and died was shot day. premium which matured March ing The annual following provision: contained the paid. policy The had not been ‘‘ paid together with all thereon lapse shall policy This any Society premium when non-payment of shall forfeit the with Ellis’ failure the which, in connection due,” recovery. by company as bar to 24, 1906, pleaded the March due by a plea with a the plaintiff this defense effect met The concerning this by company with Ellis negotiation had the course including to and that continued down premium 9, policy and its hereafter, the will referred 1906, which com-, by foregoing waived the provision had been the under plaintiff in favor of the waiver was resolved issue of pany. The judgment of by jury, and court the verdict of the the trial the by princi- Appeals. the Court of Civil The has been affirmed court any is question presented to us is whether there evidence pal record that finding issue, jury’s upon this the other supports the be- authority agents respect with ing a similar conduct, dependence to bind it which company upon the main plaintiff in the case issue. amount, mother, to his like payable This another policy, originally company wife, issued payable to his Texas, general agents Antonio, at San Marks & Plummer. through its company cashier of at During 1905 W. H. Bourke San Wy- During Plummer. H. of Marks & Jas. Antonio, office Baker, gen- Austin in the office R. H. man was such cashier larger manager part at that time for the eral contract between the and Marks & of Texas. State right ap- should have the provided that Plummer business, for their office and it to be inferred point a cashier cashier the San Antonio officeunder served as that Bourke Wyman employment. served cashier at Austin appointment under direct spective company. As cashiers in employment re- these Wyman pre- attended to the collection of officesBourke always loans Austin cashier handled miums. The company’s superintendent Brophy In Gerald F. office. general-offices in Department in its and Loan its Extension In conduct of the business Austin City of New York. upon policies for loans and for extensions applications office superintend- office were referred to the premiums, gave Department, and Loan who instructions of the Extension ent cashier, him. were acted thereto reference provision above noted the contained the In addition following provisions: Payment “3. Grace of Premiums. 1‘ any time made at hereafter default be Should provided, as herein due Von. 105. will provided accept waive default and payment premium, of said thereof, per the amount with interest thereon at five cent

per annum from default, thirty the date of be tendered it within days after such default.”

“V. Reinstatement. lapse any “Should this policy reason non-payment of the premium, may any at be reinstated time furnish- the assured ing good satisfactory evidence of Society, health pay- and the . any of all ment arrears and Society, indebtedness to the this under existing contract at the lapse, date of at five interest thereon per cent per annum.” Policy “XIV. Application and Contract. Entire application therefor, “This and together, consti- taken writing tute the contract, entire which cannot be except varied following one of the executive officers Society, at its home York, office the President, Presidents, New viz.: The one the Vice Secretary, Secretary, Actuary, the Assistant Comptroller, Actuary, the Assistant the Treasurer, Auditor, the Associate Audi- Registrar tor, Recorder, Registrar.” or the Assistant While under policy, as will be pro- observed from one quoted, grace thirty visions above in period days after the default payment premium 24, 1906, matured March could have been availed of right, Ellis as a matter of he did not make within period, policy thereupon lapsed according A thirty to its terms. period days pro- further policy, vided as will noted, be also not of grace, but within permission might the policy reinstated, lapse through pay any even after failure to premium, upon evi- satisfactory good company being dence of health furnished any and the all arrears indebtedness with interest; nothing invoke a was done reinstatement of the this provision, appears under made no reference to it to have been negotiations between him and Wyman, the cashier office,after the of the Austin default occurred. March due question solely by us before the issue of waiver must be deter- company, the conduct of agents or its acting mined authority, scope within the relation to the 1906 premium, evincing company’s but as attitude toward this risk and, as we it, purpose view a breach through looked to as to maintain insurance in force even at some general its rules sacrifice of its policy, premium may some its'action, Bourke, in respect to the 1905 cashier, helpful grasp to a clear the issue and not without in- When that premium true solution. fluence pany matured the com- August 22, granted extension to 1905, upon first pay- Ellis’ period. rate for that of the cost term ment did not meet due this new maturity, the balance on But however. date, after he had subsequent notified Bourke that he would op U. S. Ellis. Life Assurance 1913J] permitted he was insurance to another transfer his to he was unless extension, for required another proposed as he had the amount a of both granted further extension or such reinstatement pursuant to its company but contrary to the rules of the policies, according to statement special concession, Bourke’s instructions, as a whereby were extended policies his both letters, in to December of one required he the payment did make Neither He on by last named date. remitted it that and on due or possible home. It was not for the remittance by mail his date from sent, office, San Antonio to which was at the to have been received duly day least; accepted it was nevertheless and until the next by by protest so far as is company without disclosed applied record. respect what occurred with to We will here summarize premium A notice that that would be due on March premium. written by February containing 16, 1906, Ellis 24, 1906, following on was received premium “Unless the then due shall to paid be clause: duly appointed agent person Society or authorized to said collect to the day due, before the it falls and will and payments all thereon be forfeited void.” While the letter Wyman from a- appears in the record it letter of is not set forth on March Ellis, April 3, 1906, that Ellis written to of had cashier a letter to making Manager, Baker, application the General for Wyman reply agree- This policies. his enclosed a loan loan on both ment to be was duly that the loan value of executed, stated each him notified Ellis that remittance $575.00, $356.50 and necessary transaction, being complete evident be to that would purpose paying Ellis was for applied pre- loan Wy- March 24. Ellis replied that matured policies miums on both thought that April 5th. He stated he there must be man’s letter matter; that he wanted the about the date of pay- some mistake ments set months, is, just that from March 24th nine up December way bring 24th, and desired make would value about; policies, $575.00 that the loan each of the that stated excess the amount of the Wyman, premiums for amount of period, the cash nine months the requested loan by Wyman policies and the value would be year’s requested premium. He excess of the mat- $57.00 again and that he be further gone over advised. He wrote ter referring correspondence April previous 11th Wyman on reply Wyman he had received no to his letter. stating that wrote enclosing copy his April 12th of letter of him on the the 3rd of acknowledged receipt of this letter April 15th, ad- April. Wyman’s original April received letter of vising he had 3rd Wyman supposed received, which he it, and he replied had enclosed Wyman’s reply April letter of Wyman of his 3rd. copy 16th, April stating this letter on receipt acknoweldged that he had April 5th. He advised Ellis’ letter that the transac- not received arranged previous as stated to be letter, have as a tion would premiums not be made unless the could policies paid replied to years. April this letter on 18th, saying full for three -Yol. in effect that he why necessary could not understand him for nearly to pay $400.00 more than he wanted, pre- which he was not pared do, in view of policies the fact that the had a loan value of $150.00 evidently excess of the amount the loan he desired, re- ferring to carrying the -cost of 24th, to December that is months; for nine Wyman proposal that the would still make the premiums fall 24th, very due on March thing get desired to away from. expressed willingness He his se- execute note cured for amount of March 24th to 24th, per requested December with five interest, cent early reply. Wyman had twice theretofore written Ellis While. it pleting the loan 18th he office yearly would be the full com- paid, to be in full premiums, of three annual order obtained, reply April 19th in to-Ellis’ letter of him taking advised that up he the matter home with the would write him reply.. as soon as he received In this letter he called Ellis’ thirty days attention to the fact that grace policies under the expired following that in Tuesday, and for fully order him to protected sign he should re- enclosed quest thirty days, extension of and should remit to $61.00 cover time, the term Austin for that he rate which stated would be held in the suspense adjusted. office in until the matter was It appears not reply letter, May Wyman that did to this and on 1st wrote stating nothing letter him another him; heard from previously as he had advised he had written officein the home refer- loan; ence to the and that the grant could not at that time premiums 1907. paid carrying unless the policies loan in force 24, expressed March until He further hope that Ellis necessary complete

would in-as-much amount to remit the the transaction, and premiums as the past necessary were then due it would be for him to add five per premiums cent interest to the from March maturity. 24th, requested the date He reply by return mail. May this letter under replied 2nd, to date of as “I follows: yours fully expected.” 1st, note the contents which is about what I last correspondence Wyman The next and letter in the between record, Ellis, following: was the shown May “Austin, 9th, 1906. Ellis, Sartartia, Texas. “Mr. C. G-. 5th inst. has been “Dear Sir:—Your forwarded to me you will Antonio, envelope. San see enclosed from sorry on I am plain you I matter did not make the. reference to loan your policies. by referring policies “You will see themselves that full three paid must be before a loan can years’ premiums be obtained. That why compelled you ask we are for a remittance to is the reason grant you transaction. We cannot a loan on complete nine months—it premiums pay is policies policies carrying March, 1906, premiums March, In words, the loan. to secure other we cannot order make Society of U. S. Ellis. Life Assurance 1913.] years are for three you policies premiums unless the loan on the policies on willing you $1,159.00 to lend paid. The ago. time due a short premiums apply towards “Very truly yours, Cashier.” Wyman, H. “(Signed) James 5th, which hearing date Wyman a letter If Ellis wrote in the letter, appear it- does not in the above apparently referred to Ellis’ was to urged company that this reference It is record. letter pears already ap- noted,- but '5th, which has April been acknowledging receipt Wyman 16th, replied April to on In original. stating had not received that he copy it, a connection with 19th, in which April Ellis of Wyman’s letter to loan with the home taking matter of the up the that he was was stated office, Brophy, at Wyman wrote the same date appears Extension Company’s Loan and superintendent York, the New though is not shown loan, the letter reference Department, Wyman follows: record, April Brophy replied to 25th, On - York, “New Austin, Wyman, Texas. “Mr. H. dames regard 19th inst., “Dear Sir: Your letter Nos.. carefully We noted. 1324814—Ellis—is received 1324813 and find March, 1904, two so that were issued these not, years’ paid have each. We could there- been premiums full paid for a loan unless are fore, the matter of consider years’ thereby completing the three year policy, each full another payments to the contracts become entitled must be made before which you to in re- Much we would like assist value. as surrender are to de- books, we unable extend the taining this business on explained. reasons Provided in instance for the above sired aid that the be 24, 1907, loan for could paid are to March a premiums $575 security contract; fact, it would not be granted of each actually to pay premiums to for Mr. Ellis these order you us, aware, It are to possible is as com- the loans. obtain of proceeds premiums, plete but we loans, applying the re- undertake these transactions unless balance cannot together is forwarded us with the the deal quired to close agreements. Regretting inability you, our to serve necessary loan and remain, we truly yours, “Very Superintendent.” “Gr. Brophy, F. evidently May 9th, out, Ellis on above set Wyman’s letter to proffered as Brophy’s him, letter to make pursuant written Brophy expressed as it. It was for the same terms Ellis the loan all letter, of repetition Brophy’s but a practical purposes to Ellis amounting proposal Company’s to a from the in effect direct Department the Loan and Extension to make the of superintendent loan, regarded may expressly as authorized of- and company. ficial of Yol. thirty days grace The of within which could as a matter of right of prevented lapse a policy have premium expired April Brophy’s April 25th, 23rd. written days according two policy lapsed, Brophy after the to its terms had must have known. The is case therefore resolved into where one policy according lapsed provisions, gen- with eral and forfeited to its rank company, Brophy’s authority, pro- officer and poses to pay make a him to the assured to enable the accrued premium, security, affording security with policy the sole and only to the upon would possess because it a loan value $575.00 $178.25, proposal is communicated bymail representative, duties, accredited local with line days days two is insured before he wounded and three before his death, day him on shot; and doubtless received weighed and the action effect is accord- determined and ingly. The plainly law is that when a provides insurance day paid stipulated shall be or before void, shall very become forfeited and time becomes of the essence contract, and a to so the premium it; failure determines always concurrent principle qualification with this is that this. so, fully is unless there estoppel. be a waiver or We subscribe to the ipso facto, doctrine that such cases forfeiture occurs and no act of need be done either to declare or enforce it. equal dignity But of and is principle the further fundamental provision that a for non-payment when due, may insurer, for the benefit be waived it. No forfeiture, act need be done to may declare the but some act be done it, that will waive are blended is the comprehensive rule, wherein both principles right harmonized so that preserved shall be may hardships be averted. law is not unmindful that the nature always they unyielding men is do stand and relentless rights. It will not assertion hesitate them, to enforce An consequence, hard cases and harsh even the face of a but it discourages generous impulse imposes never a restraint magnanimous chapters conduct. Those in the ancient annals of the rigor severity applica- law are marked of a strict proudest of the doctrine of forfeitures are not the history, tion our enlightened inspired thought tribute and have no aof more And it not to be tolerant time. wondered that in the waiver, pro- humane law gress of the doctrine applied forfeitures, grew and has become established up soon fundamental principle. it maxim odious, While is a that forfeitures are the law eager is not them; against initiative, to relieve it takes no presents and itself remedy against parties the no contract the have themselves made. give But it is and should not slow to not, be, effect to conduct reason- ably forego advantage of indicative an intention to the of a forfeiture holding relinquish and its result. Hence the it will upon that seize intention, of slight circumstances as evidence and the further opinion that in this rule, case, our controls that a settled waiver of result, of a insurance will the absence of op S. v. Ellis. U. Life Assurance 1913.1 negotiations or transactions any agreement effect, that to insurer forfeiture, by which the insured, knowledge of the based policy or does acts validity recognizes of the the continued Co., 1353; 65 Insurance Joyce Insurance, sec. Titus v. thereon. Co., Iowa, 419; State Ins. Y.,N. Hollis v. it case, cannot to the facts of this rule Applying this established by Wyman, May to Ellis 9,1906, written the letter of be doubted that office, following pursuant and Austin company’s the cashier issue upon the affords evidence him, to sufficient Brophy’s to letter favor jury’s that issue support determination of waiver to plaintiff in the case. Wyman, Brophy’s letter to At the time of both stated, May have Wyman’s Ellis, 9,1906, as we before and By own expired. its grace provided period only through subject to revival lapsed policy, it was terms reinstatement, provision in it with reference means of the other might company, it which, matter of concession under as a furnishing good health by Ellis’ evidence have been reinstated of all and in- satisfactory and his arrears interest, have been tantamount debtedness due it with which would new insurance: issuance of company, at with the purely optional As reinstatement written, could have any right divested of the time these letters were Ellis stood enforced, and continuance under the contract entirely dependent upon disposition will or his insurance such the status' of company. position With this as his and- agents, company through insurance, his we find the these whereby again upon policies him a proffering to make 9,1906, might for, as it had offered to do. be eared theretofore security proposed take for the loan was that af- that it policies recognized themselves. If and treated ex- forded they possessing isting capable of a certain policies and valid upon and would attain such value be- present loan value they eyes company, policies fore they If were forfeited stated. any validity any to possess and could not be made were without unless their was first accom- purpose, reinstatement value suggested. proposed was not or even It unbelievable plished which offering to make a loan company would have been this recognized security something for it and held take as defunct possessing any It incapable of value. is more and void and previous more consistent with its attitude to- reasonable, as well as it, previous relation to be- the insurance and conduct ward May 9,1906, recognized poli- offer repeating lieve that value; into a loan and therefore convertible cies as still valid notwithstanding lapse according to their terms forfeiture, willing to be understood as desired accrual forego security right forfeiture and continue the force as protection Ellis’ life. for its loan and recognition part action amounted com- If this validity equivalent to an the continued pany legitimate If pro- it was evidence of waiver. thereon, act based You. posal to make the loan at such a time and under such circumstances recognition by was not in sessed life and company pos- still virtue, regarded its action must be as without reason any and barren of purpose. The conclusion is inevitable that it was recognition a validity of the continued of the policy suit, this we so hold. by urged It is the learned pro- counsel for the company that this posal by Wyman make the loan and all offers made April 23, expiration grace period provided policy, having must be construed as relation to a reinstatement policy under provision, having reinstatement been made on comply by condition evidence of attach a would furnishing that Ellis that provision with good satisfactory company. health But this would proposal impose. condition that itself did not There suggestion by Wyman is no in either letter written to Ellis after April 23, 1906, Ellis first pro- would have to with comply vision, or policy that the would first have to be reinstated it. under any In in neither letter Brophy’s there reference all provision. at to that Nor any suggestion there or reference. The absolutely proposal unconditional, with except respect to the payment by required Ellis of complete the amount “to the transac- tion,” open and is other construction. The identical offer had been expiration made before the of the grace period and before the lapsed, and in the re- May 9th nothing newed offer of there is to indicate that the status company any the estimate of the respect was in dif- during period, grace. from ferent ognized cludes the view that the attitude its status It was .then rec- existing pre- an policy, and the letter toward it had un- dergone any still change, it must be held 9th the company recognized existing policy. it as forcibly argument einphasized It was counsel that Ellis was company, although no misled at endeavoring time the company was negotiation way provide for the continuance comply at no time insurance, any did of its proposals, to act upon at all times refused of them. but misled ment That he was not any stage negotiation would be argu- a' conclusive merely question before were the us one of estoppel. But the waiver, necessary is one and was not question here for- Ellis for a waiver of been misled be accomplished. to have not to be determined waiver is what did or The issue .of omit- light be considered It should ted to do. what the com- power had no to waive the forfeiture, .his pany did. con- probative upon upon condition could have had no mental duct or the what did or do, intended to given power its action. It alone had the effect to to waive. essentially could constitute waiver. Waiver is alone Its action character; legal consequence it results as a in its unilateral party against operates; conduct whom it act or no act some favor it in whose is made is complete party it. new agreement, not be founded be supported It need of U. Life S. Ellis. Assurance 1913.1 upon estoppel. that it consideration; nor is it essential be based have certainly would not continued It in is this insurance true indefinitely or its premium, without Ellis’ force satisfactory it can company; in manner to the a reasonable time after his adjustment some he was entitled to be doubted that .not May pre- within which to either the letter of 9th receipt the If way he had failed adjust proposed. it in the letter mium the right the to time, company the still inhered in to do so within such notwithstanding had forfeiture, it theretofore and enforce the declare waived it. company the completed was act or conduct The waiver thereafter, operative it. It was for a reasonable time that constituted right avail during period, such within which Ellis had the to and adjust the in the manner the premium proposed, himself of it and policy existing would considered as and in force. be given and are But it to us that additional force effect seems again particularly pro- and to act company, conduct of the its May very 9th, to make the loan the letter refusal posing theretofore of that born any of its offers. comply with former It showed to here a stub- company accept did not what it characterizes as previous offers, its hut in the fact accept refusal Ellis to policies with it continued its tender of loan of such refusal hardly position is invoke in defense security. It aid its as Ellis’ refusal previous offers, its when to accede to the terms of adjust as it had upon hard his failure to theretofore knowledge clearly possession that on and fact in its proposed and only recently again, May 9th, it renewed, repeated proposal upon policies same it is said make the loan Ellis terms rejected. company upon What the now relies as theretofore part only under emphasize its Ellis’ serves to own action perverseness on circumstances its offer face of it. That it renewed the to policies strongly to more evidence upon make a loan tends force, and part to maintain the insurance a desire its own clearly it did not indicate consider to more withholding right to in order enforce the forfeiture void, but was affording they might purpose continued security for the loan. whole If within a Ellis, An test of the is: unanswerable May receipt 9th had made time after the letter reasonable requested and delivered his note with the remittance would have Security, accepted adjust- proposed, settlement of the That would Í in full have ment done very plain Brophy’s Wy- us is from the terms of it seems to and so It fair infer that it would have done what it stated that it man’s letters. had willing just to do. And both letters it was said way in this the transaction willing complete these was question of waiver to be determined the com- As terms. any failure of premises, not to act pany’s conduct accepted after have the proposed would so if the May 9th in time within a reasonable settlement note completed by was transaction not so Ellis did that the premium, Vol. relieve its act of waiver, its -force as an affirmative evidence of tending least as to establish it. Under view cannot said opportunity that Ellis had upon shot reasonable act thus offer as May 9th, day renewed in the day. doubtless received, and died the next At time of his death the offer accept security for a sufficient cover Ellis’ premium upon $178.25, one; still an if open it was, cannot be said have been forfeited and void. That authority Wyman evidence was show to' sufficient to make ion, proposal contained in is, opin- 9th in our the letter Brophy’s fully Wy- also clear. letter of 25th authorized May 9th, man’s letter of may and the latter Bro- be considered as phy’s as we act, Brophy superintendent have above stated. was the department of the at its office that with home dealt the premiums him; upon of policies. extension Such loans matters upon his referred instructions them were observed agents; local limitation officials Lee, must his act as that of The company. held the in policy it except by the that could not be varied certain Niagara than Brophy, other was not v. conclusive. Ins. Co. Texas, 646. has The case commanded and has received our and careful earnest large amount, consideration. It involves a this should required pay not be if this was policy not in force at the time of clearly liable, the death of It is however, the insured. under con- its tract if it had the Our waived forfeiture. decision the only gives its in opinion that effect own acts that law our the plainly was to them. The trial court has the There imparts resolved issue. supports judgment, evidence adduced that its should stand. judgment and that the of the District Court of Civil Appeals accordingly are affirmed. Opinion filed 1912. June being did in disqualified, not sit Dibrell, Associate Justice participate ease or in its decision. MOTION

ON FOR REHEARING. opinion in its The correctness statement has record challenged by motion argument rehearing and written been in two any said It is that record particulars. does not disclose that made special concession was to Ellis in respect that premium, the statement in opinion, in ef- action, through company’s its fect, cashier, in Bourke, that the rela- evinced, premium as we viewed it, purpose tion to that main- in even at some breach its tain the insurance sacrifice rules and some general policy, its was unwarranted, because after he premium that required had defaulted Ellis was its provided terms, furnishing that reinstate good It is true that finally health. a certificate November failed to premium upon August Ellis had 22nd, maturity, its extended reinstatement the policy the date of was Society of U. S. Ellis. 1913.] Life Assurance maturity to Decem- extended thus effected and following justify all that 22nd, the record features ber opinion respect to this matter: was said original from March 24th 1. After the extension of August date, 22nd and Ellis’ default to further notwithstanding granted 22nd, was to December extension August that an 21st extension for Bourke declared his letter “longer days August usually 22nd was than six grants.” August Although pol- was due 22nd and the paid date, if on that icy Bourke, subject to forfeiture it was give according letter, extended “to time to receive to this same ’’ urging Ellis make. which was remittance, insisting that re- 3. While Bourke up he could take in his hands before home mittance to be requested, further the matter of the extension office when Ellis in his letter insurance in another August 31st threatened to take out his according company, Bourke, letter of having the matter to home officewithout 5th, referred September received remittance. September declaration his letter 22nd Bourke’s willingness him of special “to company had informed make “contrary case,” although to its rules.” Con- concession ceding a reinstatement of the this related to based showing health, plain it is from this good statement that under of company regarded the existing circumstances the reinstatement as special that condition concession the even and as of contrary rules. to its granted that Although premium under the extension to date tne subject 22nd, and the was on December to was due if not remittance Antonio office applied question Bourke received and without then paid, Ellis’ have premium the that could for not reached the San December 23rd. before we that should correct the' in Further is said statement the May Wymán’s to Ellis of 9th letter pur- that was written opinion, Wyman April to of in 25tli, letter Brophy’s to suant connec- May Ellis was advised 1st urged Brophy’s that of reply it is tion Wyman’s This is letter. a strained criticism to of April 25th the of opinion 9th ion Ellis. as an offer said that was not May there until for it advised contrary Wyman’s reply letter. the opin- to On Brophy’s the of May of fully Wyman contents the 1st letter the states to to May 9th correctly Ellis of Wyman’s to was letter referred Brophy’s letter, to having pursuant expressed written for it been on the company exactly to make of the as therein authorized. had Brophy carefully assignments several reviewed the of error in have We said the motion and that has been written light argument, of all the that case opinion the should decided as it of was remain hearing. We confined the discussion in the original opin- upon waiver question regarded of because we to the it as principally ion case and considered that none assign- real question Vol. relating ments charge to the of court of testi- and the admission mony was charge well taken. The of the court was more favorable to the insurance demanded, required than law jury to find plaintiff more than was to entitle the to a correspondence verdict. The premium relative to was ad- tending company’s missible to show the attitude toward the risk as revealed in respect premium. action In probative this sense it was upon question company’s purpose negotiation and intent in its respecting pay- with Ellis ment to consider it in the 1906 premium, proper jury and was therefore for the determining negotiation whether amounted to a make Ellis Wyman’s waiver question authority the forfeiture. The proposal of a loan that was made May by of the letter of 9th, disposed Brophy’s having author- Wyman ized such an offer his 25th. And question. was bound Brophy’s act does not admit He general charge was a company, official of its loan and ex- department headquarters tension and at its in New York. To him loans (cid:127) referred; general authority extensions undoubted matters; in Wyman Wyman all such his proposal authorization clearly made within scope was powers; his may, regarded act therefore, as the act the company . itself. necessary' It is not plain- a re-exámination of the position tiff in and of waiver error elaborated the motion argument rehearing, to here re-state in full occurred what agents regard and Ellis in premium paid year between 1906. matured on March 24th. to the It not by It date, on that nor days grace thirty provided within the policy policy. While the subject upon payment reinstatement thereafter good with interest and proof satisfactory health company, no effort made Ellis to it, thus reinstate nor to. negotiation respect any necessity transpired all the matter was suggestion .by company of there re- negotiation between Ellis and instatement. policies began regard February on both 16th May Wyman’s letter of 9th. Ellis and ended 11th and died the was shot on following day. The last negotiation word in the concluding Wyman’s in May sentence letter of was the 9th: “The you willing $1,159.00 policies apply lend the toward premiums ago.” a of the due had stated that short time payment the Wyman if In letters previous the loan of value the $1,150.00 premiums the for years, was three policies ing that is includ- paid, for were and had insisted those that Ellis should remit the that complete transaction was pending, which $356.50 together policies with loan value of the the amount would cover the year, full $1,449.00, year. the premiums for interest for one negotiation insisting Ellis was Throughout did the he not wish to necessary premiums to cover the for amount a year, borrow an full maturity of premiums the the up he desired set for but that nine December, his March to or from letters months, indicate Society op U. S. v. Ellis. Equitable Life Assurance 1913.] might payment without the of be done considered on the he wanted borrow cash, in inasmuch as the amount amount for nine security only premiums the the amount of policies as was policies. of He loan value the months, had declined to consummate was less than the stated which Wyman proposed, the transaction as Wyman’s referring evidently the furnished the occasion of which April 19th, in his letter which home office of Brophy matter to at the record. That letter erroneously opinion was not the stated the we submitted Ellis’ Wyman, appa- made to as previously as proposal, rently only way by with the which Ellis could continue the Baker, general manager, holder, and stated that Mr. as a very they policies kept anxious to have the force as were large his Brophy replied, and Ellis was a well known man. policies 25th, copied opinion. April of which However Wyman’s May letters of 1st and considered, Brophy’s letter beyond doubt: 9th establish willingness part $1,150.00 A to loan Ellis 1. of the security payment of policies upon $356.50, of aat according present when, contention, policies to its time stood for- because of and dead Ellis’ default of feited maturity expiration grace of premiums vided period pro- policies; An communication authorized to Ellis at such a time and under following negotiation satisfactory conditions, adjustment for a nearly that had extended over a premiums period two .of months, unconditional offer to make him such loan, security, upon terms; with the so made St such offer time the face previous of his Such complete the loan transaction refusal to these terms, and not- Wyman withstanding the remittance having must have known that his not made thirty days to cover the term rate for $61.00 from expiration 24th, period the date of the April of grace, as Wyman’s 19th, letter of requested April he had failed to do that urged necessary Wyman had to maintain days expiration grace after the for period within which this offer was made. Brophy’s proposal Under as embodied in his letter of 25th it premiums that Ellis’ will be observed not pay the transaction. required required to close It was that he premiums the difference between amount and the loan policies, year, interest for value of one or the sum of $356.50. through themselves, policies, security, recog- The nized complete value as providing remaining capable $1,150.00 year. this court did province not extend to a trial Applying regarded of waiver on its merits. what we prin- settled law, in a case of this character a ciple waiver of a negotiations may knowledge result transactions with the insured, forfeiture, by recognizes which the insurer the con- validity thereon, holding tinued does acts based our warranted the jury that this record submission of the issue to the Court Reports, Vol. 105. and was support finding. sufficient to its urged It is now Wyman Brophy’s letter to expressed nothing willingness than a more company to accept premium, Wyman’s the letters of May May only 1st and 9th amounted at most to a demand for the premium, sought analogize and it is the holding ease those that a mere for an premium, demand overdue accompanied by not its payment, operate resulting does not waive a from default in the payment. But subject these letters are not to this characterization. Wyman’s Brophy, plainly letter to as discloses, it pur- was for the pose ascertaining whether the would consent to loan Ellis policies equal premiums amount for nine months requiring without payment, a cash in accordance with pro- Ellis’ It posal. adjustment stated effect that could Ellis be continued as a holder, and admits of the construction that Mr. Baker, While the general manager, desired request that Ellis’ be acceded to. purpose negotiation of the entire provide was to means to premiums either nine or months, subject twelve Wyman’s immediately letter was not premiums themselves payment, upon but the basis which might arranged. the loan subject Brophy’s matter reply The was likewise the or con- basis willing dition not deal with the which the to make the loan. It did at all except as related to the loan and provision.the loan would payment. afford for their may Wyman’s same be said The letter of 9th. That letter does bear the semblance of a premiums. demand for the It was upon but a re-statement and closed amount the terms granted, would with an offer the company given make a loan of a ° policies security. as is laid Great stress the fact that the constant announcement company to Ellis was that all payment by of of events the him necessary; argued length and it that as he .at failed $356.50 payment, no possibly make such waiver could result. But this confuses what was proposition complete the loan with required complete Undoubtedly a waiver. what that amount was before would required company according to these letters loan, it make the but is it true that the completion of transaction was essential the loan could result? before waiver of the forfeiture compulsion recog under no not to policies nize It treat valid unless this paid. amount were may while, evidently all require have intended it did, consummating loan, negotiation before regarded may policies capable still have as valid and afford security question is, it. The did ing its offer to make the loan with d security, even on condition this payment, afford evi policies recognized as still ? unforfeited Or to narrow ence may be stated: Was this question somewhat a condi validity recognition policies, continued tion willingness merely the to make loan? condition of No letter regarded that it indicates as forfeited. correspondence any time after March 24th No made at mention is was their May 9th to They nego- down to be the basis of the status. continued v. Ellis. of U. S. Life Assurance 1913.1 recognized and dead and so they If were forfeited loan. tiation 25th, after on by suppose to that is it reasonable company, proposed Brophy would have grace, expiration period of the the that company would advance the the pay $356.50 if Ellis would May 9th or that premiums, wherewith $1,150.00 them Wyman you Society willing written, is to lend “the would have premiums of the apply toward the $1,150.00 policies they ago?” company In the estimate due a time short They As the the had no middle status. or force. then either forfeited Ellis’ regarded up to the time of death so itself them company that regard them, as these letters furnish evidence ought to law recognized existing policies company them as 9th the down to and so dealt with them negotiation respecting with Ellis in the jury that the should determine the issue. loan, proper it was but weight falls under argument plaintiff in error whole proposals was meant these was that contention that what of its Ellis health by furnishing good proof of policies first reinstate the should satisfactory company, and such event were the accompanied accepted security. Such reinstatement policies to be as by ration interest, was a method of resto- a certainly policies provided company themselves. The longer upon policies possessed a that no did not intend base they have intended that life or virtue. restored the loan It therefore must should be or reinstatement, proposing this method else in to make security regarded upon them as it must have them as still or escape force. There If it did recognized of dead. instatement as a condition of the loan and contained no no one the other these conclusions. they reinstated, that it should first be must have intend validity; otherwise, position continued stood upon policies to make the loan forfeited proposing that were Wyman’s Brophy’s imposed As neither nor their re- suggestion, inevitably, at even, necessary, their reinstatement was it follows liberty regard jury was at events, all that the the terms which recognition by loan was as a offer of the made force, were still in and to treat its act policies election to the forfeiture. waive original hearing holding upon was and it was Our still to waive the for the forfeiture of these possible consideration, irrespective Ellis of a without the right exclusively estoppel. The of forfeiture was a technical liberty dispense It was at company. do with it benefit without forego right If being maintain so. it elected to its of forfeiture and paid force, language of the law it became defense, but in to assert the forfeiture as order for it to estopped advantage right possessed that it virtue of the forfeit waive Ellis, absolutely If essential that be misled. it desired and it was not ought relinquish right forfeiture, its not to be held intended to entirely dependent upon showing to do so was -that power way sounder rule is that in such a was in some deceived. The may unequivocal result from of a forfeiture acts case waiver knowledge forfeiture, recognizes which, insurer . Yol. validity continued policy, Upon does" based some act thereon. subject Cyc. in 25 of Law and Procedure, is said: “While it is sometimes said as to waiver well estoppel that there must any be reliance of insured waiver other of forfeiture or cause invalidity, weight authority is in accord with the rule that part conduct on the inconsistent with reliance aon breach will be a waiver of the breach irrespective any con- estoppel.” sideration technical In authority Hollis Company, leading v. Insurance Iowa, question, same it is said: ‘‘ general The doctrine the instructions defendant, is that if with knowledge full arose, neglected of the facts out of which the forfeiture of the policy insisting forfeiture, to declare its intention of by but, acts, recognized and policy treated the as a valid and sub sisting contract it plaintiff, between and and induced him to act belief, precluded it is insisting now from on the forfeiture. This by excepted that, doctrine is defendant. Its is position consti provisions policy providing tute waiver of the of the for feiture, cumstances as would create an duced equitable relied must the acts be attended with such cir estoppel; and, plaintiff in not by change position acts in manner subject negotiation, and with reference of the as the‘acts were they occurred, done do not estoppel. after the forfeiture create an think, however, position this is We not tenable. The principle waiver of a has been which the maintained in such cases undoubtedly estoppel. by similar that of It was held is so this 26 Co., Iowa, v. Germania Ins. 9. think court Viele But we it is only by such waiver can be not true that as would create created acts or conduct estoppel. Neither technical forfeitures nor estoppels necessarily by the it law, favored and follows are ation that the waiver of stances this consider may a forfeiture be sustained circum strong equities do present which not which would be estoppel. plaintiff to create an When asserted a claim required under loss, defendant was policy informed of the facts out right grew, forfeitures it had the of which the contract once to treat the it simply an end. If silent, per as at elected remain not have if, a waiver could been inferred from haps silence. But knowledge circumstances, with the contract continued treat binding force, plaintiff and induced as of to act in belief, holding thereby very that it therefore, waived the forfeiture the just rule is the one. general think, doctrine We instruc ’’ is well correct, and it sustained authorities. tions Queen from a Co. quote as follows Insurance v. Young, 86 Ala., We insurance, limiting avoiding “Conditions 430: liability, or strictly against insurer, construed liberally are Though may a waiver assured. be the nature of favor they on similar principles, maintained are estoppel, not con- favoring courts, forfeitures, usually not terms. are in- vertible any circumstances which hold of to take indicate an election clined may A waiver acts, created conduct, a forfeiture. waive or estoppel. to create a technical If insufficient declarations, the com- op 547 Elliott Nat. Bank Ft. v. First Stockton. 1913.] knowledge breach, negotiations enters into trans pany, recognize assured, treat as still actions in to incur will- force, expense, induces the assured trouble or right having In regarded as waived the to claim the forfeiture.” opinion, cited this view to the authorities is sustained addition W., following Georgia Moriarity, Home v. Ins. Co. S. cases: court; writ in which of error refused Knickerbocker 234; Co., Mass., Insurance S., v. 96 U. Oakes v. Norton, L. Ins. Co. Georgia Admr., Grat., Kinnier’s 88. 249; Ins. Co. v. Home . rehearing The motion overruled. Affirmed. January 8, filed 1913. Opinion sitting. Mr. Justice Hawkins

D. S. Elliott First National Bank Ft. Stockton. January 2268. Decided

No. —Check—Acceptance. accepted by drawn, If has which was a check been the bank on so primarily liable, judgment against bank can not be render the rendered tú (Eev. taking judgment against acceptor. Stats., 1203.) without drawer art. (P. 549.) 2.—Same. holds, inquiry, bank, A that it written in answer to communication particular upon it, deposit equivalent pay to a description to be drawn check of a honored, and good cheek will that such is a statement acceptance thereby person to an when addressed induced amounts cash the cheek. a who against technically so, practically If it is a letter of credit check description who takes cheek of can be one enforced (P. faith of 550.) it. —Same—Special Deposit—Case Stated. bank, telegram A in answer as to would another bank whether it to a depos- pay amount, of E. the check for a named answered that there been bank check drawn in favor of K. pay ited with it such sum to E. thereupon so inquiring favor of K. on bank cashed check of E. npt though inquiry answering. answer, terms of Held in- (that amount) any check must have would drawn E. for honor cheek of tended the bank to understand that would addressed rendering special deposit amount, of K. to nature of the E. favor good. the answer was substantial only such form of check For check only secondarily; and it primarily, acceptance rendering E. bank liable against judgment judgment absence error to render the latter (Pp. 548-550.) against the bank. District, appeal Appeals, Error to the of Civil Fourth County. from Pecos Kilpatrick judgment. The hank sued Elliott and and obtained judg- Elliott appealed, and obtained a writ of error on Defendant court. appellate ment reformed rendered Johnson, Jackson, plaintiff T. Haltom, Howell and W. G. Chas. against kind rendering judgment The courterred in error.

Case Details

Case Name: Equitable Life Assurance Society of United States v. Ellis

Court Name: Texas Supreme Court

Date Published: Jan 8, 1913

Citation: 147 S.W. 1152

Docket Number: No. 2215.

Court Abbreviation: Tex.