69 Mo. 380 | Mo. | 1879
There was evidence on the part of plaintiff that defendant waived prompt payment of the semi-annual premium due August 1st, 1872; that no forfeiture of the policy for non-payment thereof, was declared, nor any act of the company or entry on their books, treating the policy as a commuted policy, was done or made prior to Hanley’s death ; that when plaintiff executed the receipt in full of all demands on account of the policy, she did it in ignorance of her rights. It was also shown that on several occasions, when previous semi-annual payments became due, Hanley was indulged by the company and permitted to make the payments after they became due, defendant having taken no step to declare the policy forfeited or commuted. If it was the intention of 'the company, rigidly to enforce against Hanley the provisions of the policy in regard to
The motion for a new trial on the ground of newly discovered evidence, was properly overruled. McIIatton, whose affidavit accompanies the motion for a . new trial, stated therein a conversation ne had with Hanley, which would have been very material evidence for the defense; but the same gentleman, on behalf of plaintiff, made a counter affidavit, stating that he had communicated to Mr. Hough, (the president of the company,) previous to the summer of 1876, and before the trial of the cause, the conversation, he had with Hauley. Mr. Harvey also made an affidavit, filed With defendant’s motion, in which he stated a conversation he had with Hanley, in substance the same as that disclosed by Mr. McHatton. Although Mr. Hough, nor any of the defendant’s officers, knew what Mr. Harvey would have testified to, and conceding that'they had used proper diligeuce, so far as Harvey was concerned, yet Mr. Hough was advised
Affirmed.