96 Va. 197 | Va. | 1898
delivered the opinion of the court.
The defendant set up the defence that the plaintiff agreed and bound himself to furnish to the defendant a policy of insurance on his life in the said company for $10,000 on the endowment plan, maturing in twenty years, with a certain printed slip to be attached thereto and signed by the secretary of the company, so as to make the provisions thereof binding on the company, in which printed slip were set forth the several options the defendant would be entitled to exercise, if he lived until the maturity of the policy ; that the policy issued to the defendant did not have the said slip thereto attached and signed by the secretary; and that it not being so signed and attached, he had never accepted the policy. The defence was set forth in two special pleas, averring fraud in the procurement of the notes, and claiming damages to the amount of $517, which the defendant offered to set off against the plaintiff’s demand.
After the evidence was all in, the plaintiff demurred thereto,, and the jury having found a verdict in the alternative for the plaintiff or defendant, subject to the opinion of the court upon the demurrer, the court was of opinion that the law was for the defendant, and gave judgment in his favor for the amount of the set-off, in accordance with the alternate verdict of the jury.
There was no conflict in the evidence, and it appears therefrom that a policy of insurance for $10,000 on the life of the defendant was issued by the said company on December 20,, 1894, and received by the defendant between that date and the end of the month. Along with the policy was enclosed the printed slip referred to, but not signed by the secretary of the
It was the imperative duty of the defendant, upon the receipt of the policy, to examine it promptly, aud see if the printed slip was attached thereto, and signed by the secretary of the company, if he meant to claim that this was a part of the contract, and if not so signed, to return the policy and the slip within a reasonable time to the company, or to the plaintiff, that it might be so signed and attached, and if not done, to demand that the contract be rescinded and his notes returned to him. Plympton v. Dunn, 148 Mass. 523; and Leigh v. Brown (Ga.), 25 S. E. 621. In cases of this nature, great diligence is required of the parties, and the delay for twenty months to examine if the printed slip was signed, as he testified that he had specially stipulated should' be done, cannot be sanctioned. His negligence was inexcusable; the delay unreasonable. He began to receive the benefit of the policy from the day of its date, and every day that he delayed to notify the company of the omission now complained of after he discovered it, or by the exercise of due diligence might have discovered it, was a wrong to the company, if his plea that the policy “ was never accepted by him as a compliance with the contract or in lieu
The judgment of the Circuit Court must be reversed, and such judgment entered here for the plaintiff as should have been entered by'the Circuit Court upon the verdict of the jury.
Reversed.