105 Mich. 329 | Mich. | 1895
This case was before us at the January term, 1894. 99 Mich. 461. Upon the second trial plaintiff recovered. The case was submitted to the jury, with the instruction that if they should find that the first policy was surrendered under an agreement to change the beneficiary, and that agreement was carried out and the change effected, the plaintiff could not recover, but that, if this agreement was not carried out, the plaintiff was entitled to recover. After the writing of the letter found in the former opinion, plaintiff wrote two other letters to the agent of the company at Detroit, demanding the delivery of the first policy. In reply to these letters, the general agent, under date of March 25, wrote plaintiff as follows:
“Your brother applied for $1,000 policy, annual premium, for which he gave agent Heffron a note of $48.70. He afterwards came to this office, and informed me that he was not able to carry the insurance, and that he could r.ot pay the premium, and returned the policy. I then proposed that, if he would pay the quarterly premium, T would have the policy changed, and he could pay the premiums quarterly, amount $12.91. He consented to this arrangement. The agreement with him was as follows: I was to hold the note until the return of the policy changed. When advised that the policy was returned to this office, he promised to come in and take possession of it, and pay the quarterly premium, and I would surrender the note. This promise was not complied with. I wrote him at least two letters, advising him that the policy was here for his acceptance. To these letters I never received a reply. I afterwards gave;*332 the, note to agent Heffron, and requested him, if possible, to find Krause, and collect the quarterly premium of $12.91, and return him the note, and also to collect the second quarterly premium, provided a health certificate would be furnished by the assured. This is the entire matter and all the instructions that have been given. Mr. Heffron erred in forwarding the note for collection without instructions, as before mentioned. As the case now stands, Mr. Heffron is entitled to only the first quarterly premium of $12.91. The renewals for the second and third quarter cannot be delivered on payment of the premium, only on receipt of a satisfactory health certificate from one of our medical examiners. The attorney has been instructed to return you the money, less $12.91.”
Plaintiff testified that his brother told him that he intended to have the policy changed so as to make the payment of premiums quarterly, and the loss, if any, payable to his mother, or, if she did not survive him, to his unmarried sisters. A second policy was made out corresponding in all respects with the first, except that the payments were to be quarterly, of $12.91 each, and the loss was made payable to his mother if she survived him, and, if not, to his unmarried sisters. This policy, at the date of his death, was in the hands of the general agent. The amount of the premium of the second policy exceeded the first by $2.94. Practically, however, the premium was the same, the difference being interest. Defendant gave evidence tending to show that Mr. Heffron, the solicitor, had been charged with the amount of the note by Mr. Day, to whom the same had been delivered; that Mr. Day returned the note to Heffron, stating that he had no right to collect any more than the first quarterly premium; that Heffron had been credited back with the amount of the note less such quarterly premium; that Heffron sent the note to an attorney at Ann Arbor for collection, without any other instructions except to collect; that plaintiff, for his brother, paid to the attorney at Ann Arbor the full amount of the note, which amount was offered to Mr. Day, who refused to receive it; that the attorney tendered the amount back to the plaintiff,
Judgment reversed, and new trial ordered.