254 Mo. 488 | Mo. | 1914
The facts disclosed by the evidence are substantially as follows: .
Plaintiff is the assignee of the insurance policy. On November 24, 1891, defendant issued a twenty-payment tontine policy for $5000 upon the life of one Paul D. St. Yrain. The policy was delivered and first premium paid in the Territory of New Mexico, where the insured was then living. The policy provided for the payment of an annual premium of $135 on the 24th day of November of each year. Two years later, by separate contract agreement between the insured and the insurance company, the premiums were made payable semiannually, in November and May
fiol. No. 431209. 78873. Nov. 24, 1905.
On or before Feb. 24, 1906, after date, without grace, and without demand or notice, I promise to pay to the order of the New York Life Insurance Company, fifty-two and no-100 dollars at First National Bank, Albuquerque, N. M., value received, with interest at the rate of five per cent per annum. This note is accepted by said company at the request of the maker, together with eighteen and 30-100 dollars in cash, on the following express agreement: That although no part of the premium due on the 24th day of November, 1905, under Policy No. 431209, issued by said company on the life of Paul D. St. Vrain has been paid, the insurance thereunder shall be continued in force until midnight of the due date of said note: that if this note is paid on or before the date it becomes due, such payment, together with said cash, will then be accepted by said company as payment of said premium, and all rights under said policy shall thereupon be the same as if said premium had been paid when due; that if this note is not paid on or before the day it becomes due, it shall thereupon automatically cease to be a claim against the maker, and said company shall retain said cash as part compensation for the rights and privileges hereby granted, and all rights under said policy shall be the same as if said cash had not been paid nor this agreement made; that said company has duly given every notice required by its rules or by the laws of any State in respect to said premium, and in further compensation for the rights and privileges hereby granted the maker hereof has agreed to waive, and does hereby waive every other notice in respect to said premium or this note, it being well understood by said maker that said company would not have accepted this agreement if any notice of any kind were required as a condition to the full enforcement of all its terms.
(Name) Paul D. St. Veain,
(Address) Clinton, Mo.
(Name) Eliza J. St. Vrain,
(Address) Clinton, Mo.
$52.00
65c
1771. Jan., 1905.
New York Life Insurance Co., New Mexico Branch Office.
Albuquerque, N. M., December 23, 1905.
Otto Lange,
Watrous, N. M.
Dear Sir:
In reply to your favor of the 21st inst. will say that the $40.75 draft which'Mr. P. D. St. Vrain drew on you only carries policy loan interest on the policy, and in order to make arrangement to take care of the policy it will be necessary that $18.40 more be paid. The premium was due on November 24th, and the thirty days grace -allowed by the policy expires on the 24th of this month. On receipt of this letter, if you will take care of this matter, won’t you kindly send me cheek for this amount, as if same is not mailed by you by Tuesday the 26th, the policy will have to be lapsed, and will make some difficulty in getting it reinstated again. If you don’t send draft, please wire me to that effect. Very truly yours,
J. F. Dooley, Cashier.
In response to said letter Lange immediately sent to defendant’s agent, at Albuquerque, tbe sum of $18.40, and, later, received tbe following letter:
Albuquerque, N. M., December 27, 1905.
Otto Lange,
Watrous, N. M.
Dear Sir:
I have your favor of the 23rd inst., enclosing remittance $18.40, to apply on premium due November 24th on policy 431209, St. Vrain. I want to thank you for your attention to same.
Very truly yours,
J. P. Dooley, Cashier.
In tbe meantime Lange bad completed arrangements to bave tbe policy assigned to bim, and on January 6, 1906, be forwarded to defendant’s said agent, in New Mexico, tbe assignment of said policy executed by tbe insured and bis wife. Tbe assignment was dated December 23, 1905. Dooley, defendant’s agent, suggested tbat Lange and tbe insured bave a settlement among, themselves and agree upon tbe
New York, New York, February 6th, 1906.
Mr. Otto Lange,
Watrous, New Mexico.
Dear Sir:
Re-policy 431209, St. Vrain.
Referring to assignment of above policy to you, dated December 23, 1906, we call your attention to the fact that the policy was pledged to and deposited with this company on January 21, 1903, as collateral security for a loan of $810 subject to the terms of the company’s loan agreement.
Yours truly,
John McCam,, Secretary.
Per Earnest Frederick Lowes, Superintendent.
On March 2, 1906', Lange wrote to agent Dooley, requesting Dooley to let him know at any time when premiums or payments became due on the policy, so that he could take care of them, and received the following letter in reply:
Albuquerque, N. M., March 3, 1906.
Otto Lange,
Watrous, N. M.
Dear Sir:
I have your favor of the 2nd inst. In reply, I have to state that the note for $52, interest 65 cts., making a total of $52.65, was due on Mr. St. Vrain’s policy on February 24th, and on account of the nonpayment of same we have been compelled to report the policy lapsed. We have advised Mr. St. Vrain of this matter, and have asked him to send in health certificate required for reinstatement, and same should be returned to this office within the next day or two. In the meantime, if you are taking care'of the premium, kindly send in remittance for the above amount, and if*497 Mr. St. Vrain furnishes satisfactory evidence of good health the policy will probably be reinstated without any other requirements. Kindly let me hear from you by return mail regarding this matter.
Very truly yours,
J. F. Dooley, Cashier.
This letter, so far as. tlie evidence shows, conveyed to Lange Ms first information that the premium due November 25, 1905, had not been paid or taken care of, and also the first knowledge that had come to him of the fact that the note for fifty-two dollars, called the “blue note,” had been given. Upon receiving said letter, Lange immediately sent to agent Dooley a check for the sum of $52.65, which check was cashed by Dooley, and held by him under the terms of a written receipt as follows:
New York Life Insurance Company,
346 and 348 Broadway, New York.
Receipt for deposit with application for restoration of policy.
Received at Albuquerque, State of New Mexico, this 6th day of March, 1906, from Otto Lange, the sum of fifty-two and 65-100 dollars, which is to be held pending the consideration by the New York Life Insurance Company, at its office of issue, of an application for the restoration of Policy No. 431,209 on the life of Paul D. St. Vrain, which policy, by the nonpayment of premium due Nov. 24, 1905, is not in force except as provided by the nonforfeiture features of said policy.
If said application for restoration is approved, said policy will thereupon be restored as of the date of such nonpayment and said cash will be retained by the company for application in accordance with the agreement of the parties.
Notice of said approval will be mailed to said Otto Lange at Watrous in the State of New Mexico. If no such notice is mailed within thirty days from this date, said application for restoration must be considered declined, and said sum will be returned on demand with surrender of this receipt.
This form of receipt is valid only when signed by a cashier of a branch office of the company, and assented to by the person depositing the money, and must be signed in duplicate, one copy to be delivered to the person depositing the money and the other retained by the company.
New Mexico Branch Office,
By J. F. Dooley, Cashier.
Terms of above receipt assented to.
Otto Lange, Assignee.
Albuquergue, N. M., April 23, 1906.
Otto Lange,
Watrous, N. M.
Dear Sir:
I am enclosing herewith check to your order $52.65, refund on the amount paid March 6, 1906, on Policy 431209 on the life of Paul D. St. Vrain. The insured has been unable to furnish the company with satisfactory evidence of good health. For this reason they have arranged to make this refund. Kindly return to me the receipt which you hold in your possession, and if you are unable to find it, please sign the attached receipt and return to me. Please give this matter prompt attention, and oblige.
Very truly yours,
Jno. F. Dooeey, Cashier.
The defendant’s evidence showed that the application for reinstatement of the policy was rejected at defendant’s home office on April 12, 1906. The policy upon which suit is brought contained the following-provision :
“Notice that each and every payment of premium is due at the date named in the policy is given and ■accepted by the delivery and acceptance of this policy, and any further notice required by any statute is hereby expressly waived. The giving of any other notice or the acceptance of any premium after it is due is to be considered as an act of courtesy only, and shall not he deemed as establishing a custom or as waiving or disturbing any of the conditions as to payment of premiums thereafter due.”
The policy also contained this provision:
“That the contract contained in such policy and in this application shall be construed according to the law of the State of New York, the place of said con*499 tract being agreed to be tbe home office of said company in the city of New York.”
The following statute was in effect in the State of New: York when the policy was issued:
“Sec. 1. No life insurance company doing business. in the State of New York shall have power to declare forfeited or lapsed, any policy hereafter issued or renewed, by reason of nonpayment of any annual premium or interest, or any portion thereof, except as hereinafter provided. Whenever any premium or interest due upon such policy shall remain unpaid when due, a written or printed notice stating the amount of such premium or interest due on such policy, the place where such premium or interest should be paid, and the person to whom the same is payable, shall be duly addressed and mailed to the person whose life is assured, or the assignee of the policy, if notice of the assignment has been given to the company, at his or her last known post office address, postage prepaid by the company, o.r by an agent of such company or person appointed by it to collect such premium. Such notice shall further state that unless the said premium or interest then due shall be paid to the company or to a duly appointed agent or other person authorized to collect such premium, within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and void. In case the payment demanded by such notice shall be made within the thirty days limited therein, the same shall be taken to be in full compliance with the requirements of the policy in respect to the payment of said premium or interest, anything therein contained to the contrary notwithstanding; but no such policy shall in any case be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. Provided, however, that a notice stating when the premium will fall due, and if not paid the policy and all payments thereon*500 will become forfeited and void, served in tbe manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.”
Plaintiff’s petition is in three counts. The first two counts sought a recovery of the full face value of the policy, less the policy loan, and the third count seeks to recover fourteen-twentieths of the face value thereof, after deducting the amount of the policy loan.
The pleadings are quite lengthy, covering about forty pages of the printed abstract, but the only point raised upon appeal that requires a more detailed statement of the pleadings has to do with the action of the court in overruling defendant’s motion to require plaintiff to elect upon which count of the petition he would stand. Such parts of the pleadings as may be necessary to an understanding of the point raised will, in discussing the point, be stated in the opinion.
Defendant admitted in its answer that it was liable to plaintiff for the sum of $867, being the alleged paid-up policy value after the failure to pay the “blue note,” and made tender of that amount.
The trial court found for plaintiff upon the second count of the petition. That count proceeds on the theory that the policy was in full force and effect upon the day the insured died; alleges that the defendant had failed to notify the plaintiff of its intention to forfeit said policy, as required by the New York law; and further, that by reason of the facts disclosed by the letters above set forth, and the acts and silence of defendant and its agents, the plaintiff was not informed as to the unpaid portion of the November premium, but was misled thereby into believing that all past premiums had been paid or taken care of, and that by .reason thereof defendant was estopped from saying that said policy had lapsed for nonpayment of said note, due February 24, 1906.
“1. The court declares and finds with respect to the second count in plaintiff’s second amended petition herein, that the plaintiff is the assignee of the policy sued on; that he became such assignee long prior to the maturity of the note in evidence called the ‘blue note;’ that during the time he was negotiating with the St. Vrains with reference to the assignment of the policy he paid defendant $40.75' through its agent, Dooley, in charge of defendant’s branch office in New Mexico, as and for the interest on the loan of the insured St. Vrain and wife of $810, made by the defendant to them; that upon its receipt by said Dooley, the said Dooley informed plaintiff by letter that the sum of $18.40, in addition to said $40.75, was required in order to keep the policy sued on alive and in force, and that thereupon plaintiff remitted to said agent, Dooley, said $18.40; that thereupon said agent acknowledged receipt of said $18.40’, and that it was not made known by said Dooley or defendant to plaintiff that any additional sum or sums was or would become due as premium on said policy until the coming’ due of the semiannual premium falling due in May, 1906; that plaintiff did not know of the fact of the giving of the note in evidence for the sum of fifty-two dollars, by the insured St. Vrain to defendant, or of the existence of that note, and that plaintiff had no knowledge or information of the same until after the maturity thereof and until March, 1906. That by .reason of the premises and by reason of the silence and neglect of the defendant and of said D'ooley to inform plaintiff of the existence of said note prior to the maturity thereof, plaintiff was. misled into the belief that there was no premium due and unpaid.
“And the court finds as a conclusion of the foregoing facts, that defendant was and is estopped from*502 claiming’ as against the plaintiff any default in the payment of premiums on the policy sued on, prior to the death of the insured, St. Yrain, in April, 1906, and that therefore the plaintiff is entitled to recover the total amount of the policy sued on, amounting to the sum of $5000', with interest from July 6, 1906, at six per cent, less the sum of $810, the amount of said loan, together with costs of this action.”
“2. The court declares that, respecting said second count of the last amended petition, there is no evidence proving or tending to prove that the defendant gave the plaintiff any notice whatever, through the mail, or otherwise, that the annual premium amounting to the sum of fifty-two dollars, evidenced by the note read in evidence, which fell due in February, 1906-, was given or would become due, or that any portion of the premium which fell due November, 1905, remained due and unpaid; and the court .finds that no notice was given to plaintiff that if said premium note for fifty-two dollars was not paid at its maturity the policy sued on and all payments thereon would become forfeited and void. And the court declares that in consequence of the failure to give said notice, the payment of premiums on said policy was not in default at the time of the death of the insured, St. Yrain, and therefore the plaintiff has the right to recover the full amount of the policy for $5000, with interest, less the debt of $810.”
On September 21, 1910, respondent filed a motion in this court to transfer the case to the Kansas City Court of Appeals, but said motion was by Court in Banc, on November 12, 1910, overruled. It will therefore be unnecessary to refer to the jurisdictional question in the opinion.
The points urged by appellant for reversal of the judgment are: (1) That under the terms of the policy defendant company was not required to give notice of intended forfeiture, as required by the New York
OPINION.
'“The contention is that this express stipulation in reference to notice is nullified by the general provision that the contract is to be construed to have been made in the city of New York. It is urged that the laws of New York control in the construction of any'contract made in that State, that they require notice as a condition of forfeiture and forbid a waiver of such notice, and therefore that the agreement in the policy in respect to notice is overthrown by the law of the State. But that assumes that the contract was made in New York, whereas it was in fact made in Washington, and the laws of New York are controlling in any respect only because the parties have so stipulated, and, as we have indicated, the stipulation in respect thereto is to be harmonized with the other*505 stipulations in the contract. The ordinary rule in respect to'the construction of contracts is this: that where there are two clauses in any respect conflicting, that which is specially directed to a particular matter controls in respect thereto over one which is general in its terms, although within its general terms-the particular may he included. Because when the parties express themselves in reference to a particular matter the attention is directed to that, and it must be assumed that it expresses their intent, whereas a reference to some general matter, within which the particular may be included, does - not necessarily indicate that the parties had the particular matter in thought. Here, when the parties stipulate that no-other notice shall be required, attention is directed to the particular matter of notice. When the stipulation is that the contract shall be construed to have been made in New York, no- particular statute is referred to, and the attention may not be directed to the matter of notice or any other special feature of New York law. The special controlled the general; that which must have been in the minds of the contracting parties controls that which may not have been, although included within the language of the latter stipulation. This is the general rule in the construction of all documents — contracts as well as statutes. [Bock v. Perkins, 139 U. S. 628, and cases cited; Rodgers v. United States, 185 U. S. 83, and cases cited; Winebrenner v. Forney, 189 U. S. 148; Sedgwick on the Construction of Statutes and Constitutional Law (2 Ed.), p. 360, and note; 2 Parsons on Contracts (6 Ed.), p. 501, and note.]”
The rule announced in the above case is sound, and the conclusion follows that under the terms of the present policy defendant was not required to give the notice required by the said New York statute. Nor is this situation relieved or affected by the so-called “blue note,” for the same does not undertake to-
The determination of the above point in appellant’s favor, however, is not determinative of the case, for if it should he held that the trial court was justified in finding for plaintiff on the ground of estoppel, the judgment would still have a sufficient foundation upon which to stand.
Dooley was the ag'ent and cashier in charge of defendant’s branch office for the Territory of New Mexico. He had authority to collect premiums and take such documents as the blue note, as is clearly disclosed by the evidence. Having that power,- he also, as a corollary, apparently had the power to give out information concerning the value of policies and the amount of premiums due thereon. The information he gave plaintiff was given while acting within the apparent scope of his authority, and if the information he thus gave caused plaintiff to be misled, the defendant company, and not the plaintiff, should suffer thereby. Neither should the receipt given by the defendant to the plaintiff, concerning the holding of the $52.65 pending the re-establishment of the policy, preclude plaintiff’s recovery. It is true that the receipt is signed also by plaintiff, but his testimony clearly shows that it was not signed by him voluntarily, or with a full understanding of the situation. Even at that time he had not been fully informed as to the exact nature of the so-called blue note. Appellant’s
We do not understand the rule to be that the concealment or misleading must be wilful or intentional in order to create an estoppel. The correct rule in that regard was stated by Judge Wagner in the early case of Rice v. Bunce, 49 Mo. l. c. 234, as follows:
“The important and primary ground of estoppel by matter in pais is that it would be fraud in a party to assert what his previous conduct had denied when on the faith of that denial others have acted. . . . The element of' fraud, though said to be essential, may exist in either of two ways: First, in the intention of the party estopped; or second, in the effect of the evidence which he attempts to set up.”
To the same effect is Spence v. Renfro, 179 Mo. l. c. 421. So, in the case at bar we may concede that neither cashier Dooley nor the defendant wilfully or intentionally concealed the true state of facts from the plaintiff, yet it nevertheless follows that said conduct on their part did mislead plaintiff; and while they were not bound to give him notice of forfeiture as required by the New York statute, yet, when they spoke concerning the policy and premium, it was their duty to speak fully thereon, and to supply such facts as were necessary to make clear the part information so given; and to permit defendant now to disclose facts in its defense which it failed to disclose to plaintiff when it was its duty so to do,, would in effect defraud plaintiff of his rights.
The first count is based on the theory that the November premium was not paid, and that 'the net reserve value of said policy “at the time of the failure to pay said semiannual premium on said policy, due November 24, 1905,” was sufficient to have purchased temporary insurance to the face amount of the policy for a period beyond the date of the insured’s death, and that therefore the defendant was liable for the full amount of the policy, less said loan. The second count proceeds on the theory that the premium due November 24, 1905, was not paid, but that by reason of the acts and letters of defendant and its agents, defendant is “estopped from setting up and claiming that the policy lapsed for nonpayment of said note due February 24, 1906,” and further, that defendant failed to notify plaintiff as required by the New York statute in such cases, and that by reason of such estoppel and failure of notice, the defendant was liable for the full amount of the policy, less said loan. The third count proceeds on the theory that “if it be true that said policy lapsed for nonpayment of the premium due November 24,1905, then the plaintiff was entitled,” etc., to recover an amount “equal to as many twentieth parts of the face of the policy as there shall have been complete annual premiums paid,” which plaintiff alleges would be fourteen-twentieths of the face value of the policy.
“It is well settled in this State that the provision of the code requiring the plaintiff to set forth in his petition ‘a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition, ’ does not prohibit the statement of a single cause of action in different counts, for the purpose of so varying the form of the statement as to meet any possible state of the proof (citing cases). So where two distinct and different claims are based upon the same instrument, although the plaintiff may be entitled only to a single satisfaction, both may be stated in different counts. [Byrdseye v. Smith, 32 Barb. 217; Bliss on Code Plead., par. 120.] In neither case can the court compel the plaintiff to elect upon which count he will proceed.”
It follows that the. court acted without error in overruling defendant’s motion to elect. The judgment is affirmed.
The above opinion by Williams, C.,‘is adopted as the opinion of the court.