36 Ga. 429 | Ga. | 1867
The obligation in this case is to pay “ within sixty days after due notice and proof of the death of said William E. Sikes.” Notice and proof are conditions precedent to a recovery in this case. Such are the terms of the contract. There is no allegation in this declaration that any such notice and proof were given to defendant, and in the argument it was admitted, as we understood it, that none was given before process was sued out. When would the right of action accrue by virtue of this policy ? When would the debt become due and payable ? The contract defines the rights of the parties, and specifies when the money shall be payable. The debt is not due at the death of Sikes, nor could it become due until notice and proof of the death be given; nor is it due at once upon the giving the notice and making the proof, for by the terms of the contract defendant has sixty days after this within which to pay. There is no breach of the contract until the expiration of the sixty days, and defendant shall have failed to pay; then a right of action accrues, and not before. Many reasons might be given why defendant should require such notice and proof, and then time to convert its assets into money before it should be bound to pay. It is sufficient to say that the contract requires the notice and proof, and gives defendant sixty days thereafter within which to pay, and the contract contains the measure of plaintiff’s rights. Worsley vs. Wood, 6 T. R., 711; Inman vs. Western Insurance Co., 12 Wen., 452; 1 Ch. Pl., 320-1; ib., 329-30.
Eor want of an allegation of compliance on the part of plaintiff with this condition precedent, the Court - below dismissed the action, and we affirm, his judgment on that ground.
In relation to the other question made by this record, Judge Harris thinks the fact that the assured was con-scribed and forced into the military service of the Confederate States avoids the policy. I am not prepared now so to hold. In my judgment, this is a grave question and
Judgment affirmed.
