39 Wis. 111 | Wis. | 1875
The application for the insurance upon the property covered by the policy in suit, signed by the plaintiff’s testator, contains the following condition, which is part of the
Had the agreement been that in case of default the whole
But this is not such a case. The stipulation in the contract before us is not that upon default for sixty days in the payment of the note given for the cash premium, such premium shall be considered earned, and therefore payable absolutely; but it is merely that the liability of the defendant shall be suspended from sixty days after the note became due until the same should be fully paid. • The whole cash premium had not been earned when the defendant’s liability on the policy was suspended, but only a ¡pro rata portion of it. Neither did the premium run during the suspension; for risk and premium go hand in hand, and one ceasing, the other also ceases. A writer on this subject, speaking of the contract of insurance, says: “It is, moreover, a conditional contract; for when no risk attaches no premium is to be paid, or, if paid,
Applying these principles to the present case, it necessarily results, that at the expiration of sixty days from the time the note given for cash premium became due, the liability of defendant on the policy ceased, and, without restoring such liability, the latter was entitled to receive on such note what the policy had earned while in force, and it could have refused to receive any sum in excess of what the policy had so earned. But the defendant received the whole cash premium for which the note was given. By so doing, it received compensation for the risk covering the time when the loss occurred, and we think that it cannot now be heard to allege that at the time of the loss it had no risk on the property insured. The acceptance of the full premium after notice of the loss is entirely inconsistent with the claim that the risk was suspended when the loss occurred.
~We conclude, therefore, in view of the peculiar terms of the contract, that the acceptance of the cash premium after default and notice of the loss, operated as a waiver of the suspension clause therein, and renders the defendant continuously liable on the policy the same as though the note for cash premium had been paid when due.
II. It remains to determine whether the policy was for-
It may be here observed, that the acceptance by the defendant of such premium after the loss, and even after the defendant had notice of the loss, is of no importance. Such assessment was due and payable absolutely, whether the policy was forfeited or not. Iowa State Ins. Co. v. Prossee, 11 Iowa, 115; Smith v. The Saratoga County Mut. F. Ins. Co., 3 Hill, 508. It is apparent, from what was said on the other branch of the case, that the defendant waived nothing by accepting that which, in any event, was its due.
A by-law of the defendant provides that, “ Whenever any assessments shall have been made upon the premium notes, and the sum determined which each person shall pay upon his note, if such sum shall not be paid within thirty days after the same shall have been demanded by the company or their agent, the directors may, at their option, annul the policy of insurance given upon such note, and may retain such note and collect such sum so assessed.”
The charter of the defendant (Laws of 1851, ch. 394, sec. 6) provides that policies and contracts may be signed and attested, “ and all other business of said corporation may be conducted and carried on, by committees or otherwise, without the presence of the board of directors, and shall be binding and obligatory on the said corporation, if the same be done under or in conformity to the by-laws and ordinances of said corporation.” The by-laws provide for the appointment of an executive committee, and prescribe the functions of that committee as follows: “ It shall be the duty of the executive committee to determine upon and audit all accounts presented against the company for payment, and generally to transact all business of the company, in the absence of the board of directors, not inconsistent with the by-laws.”
The circuit judge denied the power of the executive com
As before observed, forfeitures are not favored in tbe law, and will not be sustained upon mere inferences. Where, upon breach by one party of a condition or stipulation in a contract, tbe other party thereto has tbe option to declare tbe contract forfeited and thus relieve himself from liability upon it, and seeks to exercise sucb option, be must do so unconditionally, and in plain, positive and unmistakable terms. He
We conclude, therefore, that had the resolution of December 11, 1871, been passed by the board of directors at that time, instead of the executive committee, it would still fail to work a forfeiture of the policy in suit, because the forfeiture is declared conditionally, and because the resolution does not sufficiently specify the policies to be forfeited. There should be sufficient in the declaration of forfeiture to show that the board or committee acted specifically upon each policy sought to be annulled.
The foregoing views dispose of the case. The defendant having waived the stipulation that the risk shotild be suspended on default being made for more than sixty days in payment of the note - given for the cash premium, and the policy not having been declared void or annulled for nonpay
By the Court. —Judgment affirmed.