Kinne v. Michigan Mutual Life Insurance

92 Wis. 335 | Wis. | 1896

Piotey, J.

The note given by the plaintiff for the third annual premium would not operate as payment in the absence of an express agreement to that effect. Paine v. Voorhees, 26 Wis. 522; Aultman & Co. v. Jett, 42 Wis. 488. By the express terms of the policy, the payment of the third annual premium was a condition precedent to the plaintiff’s right to recover the surrender value of the policy at the end of the third year. There is no claim that this condition was ever performed, unless the giving of the plaintiff’s note for the third premium, and its subsequent renewal by a second note, operated as. payment. The renewal note was past due and unpaid in the hands of the defendant when the plaintiff tendered the surrender of his policy and demanded payment of its surrender value, and this note has never been paid. The provisions of the policy on this subject are too clear and explicit to admit of any doubt as to their effect, and are conclusive against the plaintiff’s contention of payment of the third annual premium by his note. They were evidently framed to exclude any possible inference of payment from the mere giving of a note of the insured in settlement of the annual premiums. In the language of the policy, the premium was “settled by note; ” but “such settlement shall not be deemed a payment, but only an extension of the time for such payment-; ” and it is stipulated in the plaintiff’s application for a policy that “ neglect to pay the premium on or before the day it becomes due shall violate the policy. . . ..” While the renewal receipt continued the policy until March. 30, 1894, this renewal was subject to the conditions expressed therein and in the policy itself, that, if the note given for it was not paid when due, “ then for any loss occurring during such nonpayment ” the company shall not be liable, and that, “ if the premiums are not paid as provided herein, then, in every such case, . . . this policy shall cease and determine, excepting only that, after three or more annual premiums have been paid upon the policy,” it may be surrendered for its cash value, as stipulated. The condition precedent to a lawful demand for the surrender value of the policy had not been performed, and the plaintiff was in no condition to claim or recover the surrender value. He had no cause of action.

We were referred to the cases of Mich. Mut. L. Ins. Co. v. Bowes, 42 Mich. 19, and Tabor v. Mich. Mut. L. Ins. Co. 44 Mich. 324, as sustaining the plaintiff’s contention that, by giving his note for the third annual premium, he had paid it and was entitled to recover. It is sufficient to say of these cases that it does not appear that the policies there under consideration contained a condition precedent, such as or similar to the one before us; nor do they declare, as this one does in substance, that a settlement by note “ shall not be deemed payment, but only an extension of the time for such payment of premium.”

The court erred in refusing to direct a verdict for the defendant..

By the Cov/rt.— The judgment of the superior court is reversed, and the cause is remanded for a new trial.