Hoyt v. Mutual Benefit Life Insurance

98 Mass. 539 | Mass. | 1868

Wells, J.

It does not appear to have been understood or intended by the parties, that a contract of insurance should be effected otherwise than by receipt of the premium and delivery of the policy. The judge at the trial held “ that delivery of the policy was necessary to the completion of the contract; ” and the instructions were given upon that assumption. The principal question is, whether the instructions, upon which the jury have found such a delivery, were correct in law. The court are all of opinion that they were not correct. The premium was not paid; the policy was not delivered. Taking the facts most strongly in favor of the plaintiff, they show merely that Hoyt, whose life was the subject of the proposed insurance, had made an arrangement with Banks on the one hand, and with "Wells, a sub-agent of the defendants, on the other, that the money should be paid by, and the policy delivered to, Banks, instead of himself; and that Wells, having agreed to call on Banks for this purpose, failed to do so. The instructions allowed the jury to find that this arrangement, and the neglect of Wells to call upon Banks to receive the premium and deliver the policy, were equivalent to an actual payment and delivery. But the undertaking of Wells was a mere personal one, for the performance of which the insurance company was not responsible. Arid besides, even if Wells had authority to bind the company b,y giving credit for the premium, no such credit was in fact given. Wells had no promise from Banks upon which to give credit; and the whole arrangement excludes the idea of any credit. The policy was to be delivered only upon payment. It was not an arrangement by which Wells accepted something else as an equivalent for the premium, and consented to hold the policy thereafter as ' Hoyt’s, solely for his benefit or convenience. In this respect the ease differs essentially from those cited by the plaintiff to show that an instrument may take effect as a contract, although retained in the manual possession of the party executing it. The policy here was retained for payment of the premium, and not held as a simple deposit.

In the opinion of the court the facts do not warrant the instructions that were given to the jury upon the question of delivery Exceptions sustained.