*1 - v. Norton.. Insurance vice was a addition to his in the line. by specific pay At. time, therefore, it well said that the addition was be might pay for the staff But now there is no appointment. compensation for rank; staff service and, from that of in our separate opinion, it cannot be said within the meaning, regulation, receives for his quartermaster staff He pay appointment. gets more as lieutenant reason of his transfer to a new ser- pay’ vice, but for his- This nothing separate appointment. case, the additional which the law compensation gives not,, is case of a acting quarter- assistant-commissary service, master second staff performing appoint- ment.
n Judgment affirmed. Company Insurance Norton. ' may any policy An insurance waive condition of a inserted 1. therein its benefit. time, give company may option, at its to its 2. As the' forfeitures, agreements, upon or to waive is not bound to act make they authority. policy in its have no such declaration option provable by a fact it has or has not exercised that either 3. Whether by parol. evidence or written denoting power agent, an insurance to a locar evi- As
4. practice allowing its him to extend the dence is admissible as to time for ' notes; premium jury, upon premiums and such evidence, extension, may find whether he was authorized to make such an and, so, was in fact made in the case on trial. if whether it premium, already that the fact that the In this the court holds note was' 6. pre- past when the to extend was made is not sufficient due operating as a vent that from waiver forfeiture. to tbe Court of tbe for tbe Circuit United States Error Northern.District Illinois.' action was Phoebe Norton on a This A.' brought by insurance, issued the Knickerbocker Life Insurance Com- Norton, York, on the life of for the of New Jesse O. pany and children. was benefit of his wife The original policy 20, 1867; and, fire, dated April being partly destroyed by $385, reissued in 1874. premium April, payable each April .the annually day year; twentieth - Co; v. Oct. . 1877.]' other contained the con- policy, amongst things, following — dition : “Second, If the said shall on or before paid o’clock,noon, twelve *2 on the above mentioned for the day days or thereof, at the office of the in payment the city of -New company York (unless otherwise or to expressly agreed writing), when th'ey'produce the receipts signed by or president secretary, or if the of or note other principal or -upon any obligation interest for the given premium said shall not upon be at the policy paid same time the' shall then, become due and and payable, such' the every shall not be liable company the sum pay (cid:127) assured, or any thereof; and said part shall and policy cease be null void, and without notice to any party herein, interested or-parties that the except for a stipulation new as hereinbefore policy, pro- vided, shall remain in force.
“Third, In case a loan of or.credit for a of said portion premium be made shall on this said policy, shall all policy subject to of the terms and conditions the expressed or 'obli- acknowledgment, credit, for such loan and gation given or of payment interest in advance; thereon and said loan or credit' shall be a counter- just claim amount which shall become due against any on payable the and shall be deducted therefrom.” policy, an indorsement on the it was
By declared that policy, of-the make, alter, are not authorized “agents contracts, or waive forfeitures.” abrogate 1875; The died on the of insured 3d and the August, insurance, refused to the that the ground was policy forfeited reason of the of certain by notes non-payment given 20, for the last which was due premium, It 1875. April conceded that all the other had been premiums paid. declaration,
The besides a count on special the con- tained the counts. The defendant ordinary money, the pleaded (cid:127) issue, and, notes specially, premium were not general at and that the became paid maturity, policy thereby forfeited.. first, of plaintiff replied, agent at defendant do, defendant so to ex- Chicago, by authorized regularly note, time tended the of of the first which became payment June, due on the 20th of to the 20th of when ten- she July, dered the amount thereof to the who refused agent, to receive (cid:127) Co. v. Norton. same; and that she also tendered the amount of the second
note at its which 'was likewise refused': maturity, secondly, that', note, after the first of de- maturity fendant, do, authorized so to waived all regularly advantages have claimed because of its company might non-payment at and extended the time as before maturity, payment, stated, with an averment tender and refusal. The defend- ant, denied that it had'extended rejoinder, the time way it had or that waived payment, any advantages, alleged. This was the at the issue trial.
It on the trial that appeared premium question cash, settled $50 two balance in *3 notes, to the issue as extension of on the time and the On it, to of the agent the three authority plaintiff produced Randall, March, 1874; witnesses: of the down to agent company successor, his who was the time in Frary, agent question; Norton, insured, son and Martin of the in who acted behalf of his extension, father in reference to the and to the alleged tender of payment. of
The these to witnesses tended show that for- testimony the had allowed their to extend on time merly company agent notes for a of that this indul- premium period ninety days; reduced afterwards to and then to gence days, sixty thirty; and at the in the as a period question, agent required, to return notes in his hands if not the general thing, the paid by 15th of the month that in which became due. following they
As to what took with reference to the in place notes ques- tion, there is in some conflict between Martin Norton testimony testified, and the The substance, former agent, Frary. 1875, father, he called on the Junte, behalf of his agent, due, few first after the note became and told him that days father wished it extended for to which the agent thirty days; answer “All That called agreed, being, again right.” .he —his Oct. 1877.] Co. the of an extension of the
on or about 8th request July, note, month, the which would become due on 20th of other of the first note to the 10th of and a extension August. further would have to write to the the said he That company agent - 13th, That, he called and told this. about again, notes; concluded to his father had both pay agent him the what was due on them. figures, showing agent gave 15th, notes, called on the That he again prepared that he could not he was informed receive when received orders from the to return money, having York, to New and he had done so. That he all the papers note, tender of the due on the first made a then amount legal he'had refused. testified that no recollection which was Frary interview, or of to extend the first note. of the first agreeing rest, did not differ. As to materially they In addition to relating general practice testimony extensions of time for the granting notes, evidence was to show that Nor- given tending premium insured, ton, had received more less indulgence usually that kind. for the defendant moved to out the testi- counsel strike The as touching usages non-payment mony Norton, *4 much of as tended to so Randall’s to testimony disregard jury the defendant and the conduct plaintiff regard show but allowed to stand so much of Randall’s former payments; as tended show powers and testimony Frary’s extensions on in reference giving premiums prem- to. notes. This ruling excepted ium (cid:127) the court left to them to from In say, charging jury, Insurance .Co. v. 288 evidence, whether the defendant had agent power a strict waive with the terms of compliance the-agreement ; to the time and, the notes for the if paying he had such wRether such power, a waiver was in fact made: was, if if .if insured offered to the notes within the time extended, which were and the refused they (cid:127) to receive that then the was entitled to re- payment, plaintiff cover. The were instructed further jury power vested Randall, it tended previous agent, only pertinent as ,in successor, to throw vestéd light powers Frary. The defendant’s counsel and submitted excepted charge, .. several instructions, substance, them being, purport of
that, in'view of the the. evi- express provisions policy, dence was irrelevant and to show utterly incompetent any (cid:127) in the as to the time indulgence any notes, and the- to waive the incurred paying- forfeiture their or to show that valid non-payment maturity; was, fact, éxtension or that legal granted, was waived. These instructions >wererefused. There was a judgment sued out writ error. plaintiff, whereupon Miller Cr. 6r. the plaintiff II.Mr. Mr. Thomas Frost in error.
The" are parties court must en- bound-by force to its tenor. Pitt v. Berkshire according Insurance Bife Oo., 500; 100.Mass. Oo., Roehnerv. Knickerbocker Insurance Life 412; v. (N. Y.), A Daly Robert New England Insurance- Life 855; Oo., Associates v. Howland, 1-Disney 5 (Ohio), Cush. Fifty 214; Baker v. Union Mutual Oo., 43 (Mass.) N. Y. Insurance Life 288; Howell v. Knickerbocker Insurance Oo.. 3 Robt. (N. Y.) Life 232; Oatoir v. Co., American Insurance and Trust Life (cid:127) 487; 157; L. N.- J. Wall v. 36 N.-Y. Oo., Home Insurance New 24; -v. Statham et al., Oo. 93 U. S. York Insurance Beadle Life 161; v. Chenango 3 Hill Oo., Insurance (N. Y.), County Mutual 254; v. Oo., 103 Mass. Shaw Berkshire Insurance Bradley Life 108; Oo., Md. Potomac v. Fire Insurance Union Mutual Life ' 67; McMillen, Insurance Oo. v. 24 Ohio St. Mutual Benefit Life Ruse, 534; Insurance Oo. 8 Ga. Sullivan v. Cotton States , 43 id. 423. Oo., Life *5 ' Oct. Insurance- Co. 289 1877.] v. - material,
The time suchran instrument payment in. contract, .of the and a failure to involves an essence forfeiture, waive, absolute which the had no agent could he an nor of time for of the- grant extension 22 note. Co. v. Mich. Insurance 467. Security Fay, (cid:127)premium - for, When such extension was forfeiture of applied had been incurred, and the policy pretended already void; extension was for want of consideration.. Mr. S. P. Me Connell defendant error. declares that have no
Although policy power insurance, Waive a or the contract of modify nevertheless, authorize them company issuing may by grant, either, or, conduct, to do its itself from estop denying ¿Etna has been made. Insurance Co. v. such- et Maguire ad., 842; Co., 51 111. 4 Perkins v. Insurance Cow. Washington 645'; Co.,. v. American Insurance 23 (N. Y.) Lightbody Life 18; Wend. McFwen v. Insurance (N. Y.) Montgomery County 101; Co., 5 Hill Fclectic Insurance Co.v. Fahren- (N. Y.), Life 463; 68-111. Keenan v. Missouri State krug, Mutual Insurance Co., Iowa, 12 126. extent of the is a for the The agent’s authority question jury. Insurance n Co., Sheldon Connecticut Mutual v. 25 Conn. Life 207; Co., 10; v. Fire Insurance 29 id. Bough City Farmers’ Co.v. Pa. Mutual 73 St. 342. Taylor, Insurance
A new consideration is not to validate either the necessary waiver of a forfeiture or an' extension of time for the payment or of the notes therefor. premium, Leslie v. Knick- n Qer- Co., '616; erbocker Insurance 2 Hun. Viele Y.), (N. Life Co., Iowa, mania Insurance 9.
A
insist
cannot
party
upon condition
the breach
precedent,
of which he caused.
v. Bunter, -
Mr. stating Justice of the court. opinion is,
The material whether, in this case question view the express provisions evidence introduced the. n assured relevant show that the competent had authorized its as to the time of grant indulgence notes, and waive the forfeiture paying incurred v. Norton. or to their show valid ex- non-payment at-maturity; fact, had, tire tension forfeiture of the been granted, waived. written embodied in the parties, *6 thereon, and the.indorsement as well as notes and the therefor, pur-
the was the receipt given undoubtedly express that notes a failure to the at would incur a port maturity the It also forfeiture of contained an declara- policy. express of the the were not authorized to agents company tion make, alter, or or waive .contracts forfeitures. And abrogate chosen, terms, had the so it could have insisted company 'these But the a has to waive a condition or always option on. party made in his own favor. The was not stipulation company forfeiture, incurred, bound to insist a but upon though might was act waive it. It not bound to the declaration that its upon forfeitures; had no to make or Avaive power agreements agents time, but at its at them such might, any option,-give poAver. assured, The declaration tantamount to-a notice to only the 'the Avhich could-waive In company disregard pleasure. case, both with the either forfeiture and the regard-to powers of of its or stipulation Avaiver notice would not be agent, to. Avritten it because would be répugnant agreement, only of exercise an which the left in it. And option it did exercise such not whether or fact option provable evidence, as well as for the obvious reason by parol by writing, it be could done without writing. notes, That it did authorize its to take instead agents of evident, from its constant money, premiums, perfectly prac- of notes tice such when taken them. That receiving it author- by them notes, ized on these if the evidence is indulgence believed, is to be also from like It apparent practice. acquiesced ratified their in and acts this behalf. aFor long period, ; them to an allowed of give indulgence after days ninety then It inis vain to contend that it sixty; thirty days. this, them no to do when it gave authority alloAved constantly them to exercise such acts, their authority, ratified always of the written notwithstanding language instruments. think, therefore, We that there was no error committed by the court below in evidence as to the of admitting practice Insurance Oct. 1877.] time'for to extend the its allowing as indicative *7 time, and not If shall be forfeited. the insured a your policy this, it, do it, to and-does or tenders himself do to agrees ready cases, not both the forfeiture to exacted. -In the ought par- act the the continued ties existence mutually upon hypothesis-of true, It is if the be made before the policy. agreement incurred, and before the note matures forfeiture is it -would bo forfeiture, the the fraud assured to to enforce a upon attempt the when, he of agreement, original relying permits day other-hand, to the if the On be made pass. agreement payment matures, note such is a after the itself recognition, the of the of continued. existence the part, company’s its election and, of to the forfeiture. It is waive consequently, '; the that this and conceded effect acceptance payment has not see to and a tender why accept, we.do not should have the same agreement, according payment are demonstrative of the election of effect. Both acts equally the the the waive forfeiture of Grant policy. consideration, the note is and the extend without not promise — ón the which is true as when well perhaps binding company, it is is-made before as when made after- the promise maturity wards,— still does not take from the act the company’s VI.
VOL. (cid:127) of such effects act the forfeiture of the’ upon legitimate the note be sued on in Perhaps might disregard policy. extension; be, but the if could would not annihilate fact the elected to waive the the forfeiture by into the transaction. it should If its' entering repudiate agree- ment, not forfeiture, it could waiver without repudiate least assured reasonable notice to giving money. are Forfeitures in the law. are often favored They And, means of where great oppression injustice. adequate' made, cases, law compensation many can.be equity cases, forfeiture, in all such discharges upon compensation It true, made. is we held Statham's Case U. S. (93 24), insurance, material, in.life time of is and cannot be extended the assent of courts 'the against, company. But where such assent is the courts should be liberal given, the transaction favor of a forfeiture. construing avoiding n The case of leases is not without It analogy present. law, that, forfeited, familiar when a lease has is become act continuance, of its landlord indicating such recognition rent, rent or' which after accepting distraining accrued forfeiture, deemed a waiver of condition. .the Doe & there
In v. Meux Cress. Barn. (4 606) general covenant to covenant make .repair, a.special re specific to. after, notice; and a three months’ condition forfeiture pairs of. covenants. landlord to. non-performance gave notice tenant make certain within to' spe'cificrepairs three'.months. was held a waiver This incurred under already landlord, covenant. said: “The Justice Bailey .the'general covenant; and, had an on either proceed option' months, within three he notice repair have giving might an action the former defendant brought against upon *8 covenant, not -the for But that is keeping promises, repair. different from forfeiture. . I . . think insisting very upon'the to that that notice amounted a. declaration he would be months, if the were three satisfied within premises repaired that he himself from an thereby precluded bringing ejectment: before the that period.” expiration Birch & there was
In Doe v. Mee. W. a covenant on 402), (1 v. Oct. 1877.] . of' the tenant to make certain improvements
the part months, that the should be within three lease void. premises to make the manner 'He.failed improvements stipulated; son, months, three and, after the of the landlord’s expiration behalf, But, made a demand of rent. on his father’s a quarter’s it landlord knew the tenant’s not failure appearing to it was with held that son had improvements, regard Otherwise, to waive the forfeiture. it not sufficient authority of the seems, that the rent would have amounted a demand to Baron Parke referred to waiver. Green's Croke, 3), Case (1 tenant, rent, a in a where for calling party receipt bygone waiver, held to he evidence of a sufficient though accept “ not he ance of that rent was such. And adds: If had been alterations,- father had notice of the that the he had proved rent, still allowed the son receive the the forfeiture might- But was not have been waived. proved; ques therefore, not, tion of does arise the cáse. distinctly waiver had, If it the authorities cited show that this was a void lease Then, the landlord. I think able at the election of that an rent, a absolute, suffi having Unqualified by persqn demand of the for cient have amounted a waiver would authority, feiture, been the case I cited from Croke’s and it would have like Reports.” Smith, Best & after a forfeiture -ofa
In 335), Ward Day (4 incurred, off of a manor had been license to minerals gather son, with the-lieensee entered into negotiations landlord when it the latter a renewal of license should on, which the landlord and terms were afterwards agreed expire; held, into these It was out. by entering refused carry license. he the forfeiture original waived negotiations, license to con- assumed that original negotiations The exaction forfeiture was to its tinue termination. election; and he his election to en- evinced the landlord’s Justice Blackburn into negotiations. force by entering of election has cases the doctrine “'Most of the in'which says: tenant under a been cases of landlord and have been discussed a lease, has reserved whj^h been right re-entry regular the lease forfeiture'; is, determine option not, Mr. seems to Russell but this doctrine forfeiture: *9 ¶. Insurance think, confined to such so, cases. far from that So law, that, doctrine is but a branch of the where a man general has an election or to enter into an estate vested option in another, or to of some another deprive before he existing right, elect, all, acts he must once for whether he will do the act or mind; not. He is allowed time to make his but when once up he has determined that he will not consider the estate lease, or be, void; whichever it he has not further may any option his mind.” And then the learned cites author- change judge ities, Books, back to the Year to show determina- going tion of a man’s election such cases be made may by express if, act; words, áet, and that word or he determines by by by existence, that* continue the lease shall and communicates to the that determination other he has elected that the party, shall tenant. other as go cases show These readiness with which courts seize hold circumstances that an election indicate or intent to waive a forfeiture. We think that the case is within the reason present authorities; these and that the that the note was objection, due when the to extend it made, already past is not sufficient to said from as prevent operating of the forfeiture. waiver defendant;
Several minor were raised but points by they are all embraced in the main either.substantially points already considered, or are not of sufficient force to dis- require special cussion. record, find no error in the
We judgment Circuit Court is
Affirmed. Field, Mr: Swayne, Justice Mr. Justice Mr. Jus- Strong tice dissented. Strong. I dissent from the judgment given
Mr. Justice in this case. The insurance effected became for- policy diem, feited ad note. The non-payment then ceased to be a contract. It was so policy binding expressly in the instrument. stipulated Admitting force, could afterwards elect to treat the or, still policy words, forfeiture, other could waive the the local could Fleming. Oct. McLean 1877.] .
not, unless he was so authorized principals.
declared that should not have to make such waivers. And there is no evidence case that the com- to waive a forfeiture pany gave agent parol authority *10 * it had occurred.' had ratified his acts the . They extending time notes, of' when the extension was made before the notes due. But no fell -practice sanctioned act of its done after a had expired,' which new life was to a dead by contract. Fleming.
McLean habitually stamped goods manufacturer has particular 1. "Where a his with a brand, equity a court of will restrain party adopting mark or another from goods. same kind of it for the part proof fraudulent intent infringer 2. Positive required is not clearly infringement is shown. where the rule, Although precise applicable cases, S. no can laid be down as all to the. degree necessary infringement of resemblance to constitute an of a trade- mark, injunction granted close, will an where the imitation is so n woi,. marks, contents, form, special arrangement, or their general appearance infringing device, purchasers exercising'ordinary likely buying caution are to be misled into bearing the article it for the genuine one. necessary, party injunction, specific is not to entitle to an 4. It that a trade- infringed. satisfy mark has been It is sufficient to the court that respondent represent public goods intended to that his were those complainant. appellant infringed In this the court holds that the 5. has the trade-mark of latter, by appellee, long-continued but acquiescence that the therein, delay relief, seeking guilty and his unreasonable has been of inexcusa- laches, profits. and is not ble entitled to account for The decree below affirmed, injunction, therefore so'far as’ it awards an but reversed as to damages; appellant. in this court costs are allowed to the Appeal from the Circuit Court the United States District of Missouri. Eastern 1, 1872,
The bill this case was filed. June Cochrane to restrain the of his Fleming, alleged trade-mark infringement for liver Jlimes H. McLean. pills, by 1884, McLane,
As as. Dr. Va., Charles early Morgantown, made and sold liver them boxes, wooden pills, putting up notes Norton Jesse O. to the insurance promissory months, in two three company, payable respectively June, one 20th of other on the 20th of matm’ing, clause, 1875: Each note contained a if it July, declaring — were void, would be paid maturity the usual notes. form
Notes
notes thereon indulgence premium prior prior him, and in conflict with the terms of the as incompetent, no the al- showing authority give Frary extension; consideration, made, which was without if leged had occurred. the defendant also moved to strike out that counsel for Martin Norton’s relative testimony portion such potes, extension for an &c. The court without part agent, motion; and, first, as to the directed- the latter ovérruled
notes premiums, given premiums error in those nor submitting agents; given any power evidence, -the find whether defendant such upon jury, ; such extensions its to make had or authorized had whether, if such nor it to them'to in submitting say was made in this ease. had been an extension given, stress, however, that the Much is laid- the fact extension tó have in this was not claimed been case given, applied ' for, had until after the first became due and note incurred. But we do not deem this to material. been actually does evidence not show distinction was made' in notes. extensions before or maturity granting waived; is, material whether the forfeiture was Tlie question see no done as and we reason not be well may why made for the note after its extending maturity, ease, before. one made In either effect of legal indulgence insured, such is this: note say Pay your