64 Neb. 138 | Neb. | 1902
January 10, 1895, the defendant in error issued to the plaintiff in error a policy of insurance to run five years, taking a note maturing December 1, 1895, for the premium.
There is no doubt.of the right of an insured to have his policy canceled upon the terms provided by section 42, chapter 43, of the Compthed Statutes, which is as follows: “Any person, company, association or corporation transacting the business of fire, or fire, wind, storm, and tornado insurance, in this state, shall cancel any policy of insurance hereafter issued or renewed, at any time, by request of the party insured, or his legal representative, and shall return to the said party, or his representative, as aforesaid, the net amount of premium received by the company, after deducting the actual compensation of the
The transcript fr'om the county court recites the following in relation to the offer to confess judgment: “October 15, 1897, ten A. M., case called, plaintiff and defendant M. E. Houston present, and thereupon the defendant, M. E. Houston, fthed her offer to permit judgment to be entered in favor of plaintiff for $26 and costs to this date, and the plaintiff refusing to accept said offer, this cause came on for hearing on the pleadings and the evidence.” There is nothing in this record from which we can determine whether the offer to confess judgment included, in iddition to the customary short-rates, the actual compensation paid to the ¿gent or solicitor for securing the issue of the policy, and, this being so, the presumption obtains that the offer was not sufficient. But, even if it did, we are entirely certain that an offer to confess judgment for the amount does not comply with the provisions of our statute in relation to the cancelation of policies. By the wording of the statute, the legislature seemed to have had in mind the cancelation of policies ’that had been paid for in cash only, but we are inclined to believe that a policy issued upon a credit where a note is taken for the premium is fairly within its meaning. In such cases, however, the insured can not claim a cancelation of his policy by confessing judgment for the amount of the premium computed at the customary short-rate, but he must actually pay or tender such sum to the company, when he will be entitled to a return of his note. No offer of payment being made in this case, the plaintiff in error was not entitled to have his policy canceled and note returned.
It is insisted in a very excellent brief fthed by the plaintiff in error that the company, by refusing to accept judgment for what was earned upon the note, and by insisting upon payment of the full amount thereof, waived the suspension of the policy by reason of the default in payment
We discover no error in the record, and recommend that the judgment be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed,