2 Lans. 480 | N.Y. Sup. Ct. | 1870
By the Court
At the time of the payment by plaintiff to Holley of the two- quarterly premiums, the policy was forfeited by its term?. It then became incumbent upon the plaintiff, in order .to recover upon the policy,, to show a receipt of the' premium, by some one authorized to receive it after the forfeiture, or to show a ratification of an unauthorized receipt by the company, by an acceptance of the money with knowledge of the facts, or in some other way.
I think the case fails to show Holley’s authority to receive the. money after forfeiture. He wan a clerk of defendants ; had been an agent to receive applications for insurance in Hew Jersey, which appointment had been revoked. He had been sent by a previous secretary to collect premiums, but always with strict orders to collect none on forfeited policies. Holley signed the receipts for the payments in question as agent for the then secretary. There is no proof of his power to act as agent for the secretary. ¡Neither Holley nor the secretary is produced as a witness; If the secretary had power to waive the forfeiture, he is not proved to have done it. Holley had never done a like act, his power to bind the company, by receiving money on .policies on life, would b.e-
I am unable to distinguish this case in principle from an unreported case in this district (Taylor v. The British Commercial Life Insurance Company.) In that case, the policy was upon the life of one E. P. Taylor. William Wilson was the agent to receive the premiums; he was instructed if the premiums were not paid in thirty days, to return the receipt to the general agent in Hew York. The policy provided, that it should be void if the premiums were not paid within thirty days after the same became due. Taylor suffered default for over thirty days. About fifteen days after the policy became forfeited, the assured paid the premium to a clerk in the office of the agent, Wilson, within a few days after this payment the assured died. The company never received the money. The clerk in the office of the agent had generally received the premiums for his father, the agent. The court held that William Wilson had no power to waive the forfeiture, or to bind the company by receiving the money after default. That he was a special agent, and could not exceed his powers as such, and bind his principal by his acts, although the assured knew nothing of his limited powers.
In that case, the charter and by-laws were admitted in evidence. I think it was erroneous to exclude them in this ease. If they did show, who was authorized to remit forfeitures, they should have been received. From the evidence of the president of defendant, I suppose they did. The rejected evidence, or such parts of it as would show its pertinency, should properly have been presented by the case, so that this court could more satisfactorily determine this point. I think the judgment and order denying a new trial should be reversed, and a new trial granted, costs to abide the event.
