102 A. 344 | N.H. | 1917
The defendant and the insured undertook by their negotiations *500
in February, 1914, to terminate the policy and to adjust and settle the defendant's liability thereunder. The cancellation of the policy resulted from the contract of settlement, and not from the exercise by the defendant of its reserved right, evidenced by the policy, to terminate its liability at any time except when the insured is suffering from a disability entitling him to indemnity. The settlement was in form at least a termination of the contract. If the insured had been in a normal condition, as the defendant was justified in assuming he was, no doubt could be entertained that his request for and assent to the cancellation would be binding upon him, in the absence of fraud or imposition on the part of the insurer. There is no evidence that the defendant intended to mislead the insured in the attempted settlement, or knew or was chargeable with knowledge that he was not in a normal mental state and fully competent to make a binding contract. Nor is there any evidence that any agent of the defendant personally conferred with him at the time and might have observed indications of his mental incapacity. In fact, it is not denied that the negotiations were all carried on by correspondence and in the ordinary course of business. Ordinarily there is no presumption of insanity. Pettes v. Bingham,
Whether the contract for terminating the policy was absolutely void on account of the insanity of the insured, or merely voidable at his election or that of his duly constituted representative (Young v. Stevens,
The insured's insanity did not render the payment of dues impossible. It might have been made by his wife, the plaintiff, who it appears understood the terms of the policy and acted as his adviser and agent in regard to the insurance. Payment of insurance premiums is not necessarily the personal act of the insured. 2 May Insurance, s. 353, note 3. In case of his disability it may be *501 performed by others. Hence, ordinarily, insanity does not excuse the failure of the insured to pay the premiums when due.
By the terms of the policy the payment of the prescribed dues on the specified dates was what is termed a condition precedent. It is an act the performance of which is essential to a recovery on the policy. The insured assented to this provision of the policy and it became a material part of the contract. The plaintiff is therefore bound by it in the absence of a valid excuse for its non-performance. Johnson v. Casualty Co.,
The case of Seely v. Insurance Co.,
It does not arise in the absence of evidence of such an intention or such conduct. To hold that one by his silence may relinquish contractual rights in consequence of facts of which he is justifiably ignorant, would be to judicially disregard the obligations of the contract without his assent express or implied. As the policy did not continue in force after March 1, when the dues should have been paid, the plaintiff is not entitled to recover for disability existing after that date. The motion for a nonsuit should have been granted.
Exception sustained: verdict set aside: judgment for the defendant.
PARSONS, C.J., PEASLEE and PLUMMER, JJ., concurred: YOUNG, J., dissented.