43 So. 833 | Ala. | 1907
Conceding that the policy, which is the foundation of this suit, is a Georgia contract, and that the clause shortening the statute of limitations Avould be binding in the state of Georgia, it is expressly prohibited by section 2802 of the Code of 1896. In the Avell-considered case of Jones v. Jones, 18 Ala. 248, AAdierein the case of Goodman v. Munks, 8 Port. 84, was overruled, the court, through Dargan, C. J., said:- “It is a principle of law, admitted by all courts, that the lex loci contractus must govern as to the ATilidity, interpretation, and construction of the contract; but the remedy to enforce it, or to recover damages for its breach, must be pursued according to the law of the forum AAdiere the suit is brought.—Peake v. Yeldell, 17 Ala. 636; Carnegie v. Morrison, 2 Metc. (Mass.) 381; Leroy v. Crowninshield, 2 Mason (U. S.) 157, Fed. Cas. No. 8,269; Story,
This brings us to the determination of the question of a forfeiture by the insured before his death, which seems to have been the decisive point in the case as indicated, by the. opinion of the learned trial judge. It appears that the premium covering the period from July 25, 3 903, to July 25, 1904, became due and payable in advance — that is, July 25, 1903 — and that Galliher, not being able to pay the. same, gave the company his two notes, executed July 25, 3903, each for $59.76, and one note payable anuary 1, 3904, and the other one May 1, 3.804; each note containing the following clause: “I understand and agree that in consideration hereof said policy is extended until default is made in the payment of this note, when all rights and benefits secured thereby shall cease and determine without notice, and said policy shall he ipso facto null and void. *1 hereby agree that this note shall not be deemed a payment of life, insurance, but only an extension of time for the payment, of the same, and the. nonpayment of this note when due .and the termination of said insurance by reason thereof, shall not impair the. validity of this note, but the same shall become due and payable for the proportion of its face and interest that, the time the in
If the policy Avas forfeited on January 1, 1904, then the insured (Galliher) did not OAve the company the full amount of the first note, but only about $52. If the policy became forfeited, and was so treated upon the nonpayment of the second note, then he still owed less than the amount of both notes, yet we find the company retaining both notes and attempting to collect them in full. If the forfeiture of January 1st was not Avaived, Avhv did the company not demand what was really due on the first note, about $52, and offer to surrender both notes, instead of attempting to collect the full amount of the first one and retaining the other one? Or, if the company did not Avaive the forfeiture of May 1st, when the second note matured, Avhy did it subsequently attempt to collect both notes in full, when, under the terms of the second forfeiture, there was only ■due the proportionate part of the premium up to May 1st, and not the.full amount of both notes? Again, Ave ■find a letter addressed to Galliher, dated -August 25,
Conceding that the consent of Galliher to a waiver of the forfeiture was necessary, and that after the forfeiture was made the company could not collect the full amount of premium instead -of .the proportionate •amount due until the forfeiture, which may or may not have been necessary, we think his assent can be readily inferred from the facts. He knew that the policy would become “ipso facto null and void” upon a default of the January note, and, further, that he would only owe them so much .of the premium as was due from July ,25th to January 1st, about $52, and less than the face of the note. Consequently, when the company demanded of him payment in full of the note after the forfeiture period, and retained the second note, its act led to the natural conclusion that they were treating the ‘policy as still in force and were seeking to collect the premium, rather than the proportionate amount due in case of forfeiture. He made a partial payment of the note, a promise to pay it (not the proportion) as soon as he was able. The . policy being in existence up to July 25. 1904, and containing a 30 days of grace clause, and Gallilierfiiaving died within said 30 days, the de
The judge of the city court erred in rendering judgment for the defendant, and its judgment is reversed, and under the terms of the act regulating appeals from that court we will here render such judgment as should have been rendered.
Reversed and rendered.